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More on Bechor

Question #1: How Many?

How many gifts does a kohein receive?

Question #2: Petter rechem

Is there a difference between something being firstborn and being a petter rechem?

Question #3: Uncertain Bechor

What is the status of someone (or something) who is uncertain if he meets the halachic qualifications of a bechor?

Foreword

After Korach challenges the rights of the kohanim, the Torah reinforces the rights that Hashem provides them by providing an extensive list of 24 gifts (Bamidbar 18:8-19, 26-28). These can be divided into the following categories (see Bava Kama 110b; Chullin 133b):

1. Those that may be eaten only in the Beis Hamikdash, of which there are ten, including various korbanos (kodashei kodashim), the twelve loaves of the lechem hapanim that were eaten on Shabbos, the korban omer brought on the second day of Pesach, the two loaves brought on Shavuos (shetei halechem), the leftovers of the mincha offerings and the leftovers of the oil brought by the recuperated metzora. All the items on this list may be eaten only by male kohanim.

2. Those that must be consumed within the walls of the halachic city of Yerushalayim: The bikkurim (annual first fruit of the seven species), the firstborn kosher animals (bechor), the designated portions from the various types of korbanos shelamim. Some of these may be eaten only by kohanim and their families, whereas others may be eaten by anyone.

3. Those with sanctity that may be consumed anywhere: Terumah, terumas maaser and challah. These may be eaten only by the kohanim and their families.

4. Those for consumption that have no sanctity: the maw, jaw and paw of non-kodashim animals. These are the property of the kohein but he may give or sell them to anyone to eat. Since the tongue is included, this would provide kohanim with a predominant market in selling pickled tongue, although I know of no sources that say that the kosher deli business was exclusively kohanim’s domain.

5. Non-foods: The money of pidyon haben; the redemption of the firstborn male donkey (pidyon petter chamor), the hides of the kodashei kodashim, the first of the wool shearing (reishis hageiz); certain consecrated properties that the kohanim received at the time that there was yoveil, and a rarely-received gift called gezel hageir.

Since the members of Kelal Yisrael were required to presents these gifts to the kohein, this caused the “common” Jew to interact with kohanim on a regular basis. It seems clear that this was so that the kohein provide regular spiritual instruction and direction, perhaps as the rebbi or admor of the people.

Introduction – More on Bechor

In our previous article on the rites of the firstborn, we studied some of the laws of bechor; this will continue the discussion of those mitzvos.

Parshas Korach teaches that “Every petter rechem (literally, that which opens the womb), among all flesh that is brought close to Hashem, whether human or animal, shall be yours (i.e., to Aharon and his descendants). The firstborn among humans should be redeemed as well as the firstborn of the non-kosher animals. The redemption (of the firstborn child): from when he is a month old, you should redeem his value at five shekalim of silver, using the shekel of holy items – whose value is twenty geirah. However, the firstborn calf, lamb or kid shall not be redeemed because it is holy; you shall throw its blood onto the altar and you shall burn its fat as a fire offering as a pleasant fragrance for Hashem. But its meat will be yours (Bamidbar 18:15-18).” At this point, the Torah teaches that the flesh of the bechor animal has the halachic status of kodashim kalim that belong to the kohein and can be eaten within Yerushalayim, not only by the kohein, but even by his family members.

The pasuk first states that these laws apply to a petter rechem, that which “opens the womb,” and then states that they apply to a bechor, a “firstborn.” Are these two terms identical?

Indeed, they are not. A petter rechem is born through natural delivery, which excludes birth via caesarian section or its equivalent for an animal. In other words, the mitzvos of pidyon haben, pidyon petter chamor and bechor for korban do not apply to a firstborn who was surgically removed from his mother or born as the result of an unfortunate rupture. There is halachic discussion as to whether or not a bechor removed via vacuum suction or forceps delivery has the status of a petter rechem, but the halachic background for this topic is beyond the scope of this article (see Chullin 70a; Bechoros 9b).

Another difference in halacha between the term petter rechem and the term bechor is that a petter rechem means that he/it was not preceded by a miscarriage. In this instance, the miscarriage is considered the petter rechem. Of course, since the miscarried offspring did not survive, there is no mitzvah to sanctify or redeem it, and therefore the halachic result is that the father or owner is exempt from redeeming the bechor.

Three types of kedusha

The three types of sanctified petter rechem: 1. petter chamor donkeys, 2. beheimah tehorah, kosher animals, and 3. pidyon haben, humans. These three mitzvos have three very different sets of rules. Allow me to explain this very briefly; I will follow the order of meseches Bechoros in doing so.

1. Petter chamor

Petter rechem donkeys have sanctity that must be removed by redemption. This mitzvah is called pidyon petter chamor. As is the rule regarding most of the 24 gifts of the kohein, the owner has the right to decide to which kohein he gives the redemption (see Rambam, Hilchos Bechoros 1:15), just as the father of a firstborn son has the right to decide to which kohein he provides the five sela’im of pidyon haben.

As the Gemara (Bechoros 12b; 51b) derives hermeneutically, there is an interesting halachic difference between pidyon haben and the redemption of a petter chamor. Pidyon haben involves only one step – the father recites a bracha on the mitzvah and then gives the kohein the five silver sela’im or their equivalent value. Until the father gives the money to the kohein, he has not fulfilled any mitzvah by setting aside the money for this purpose.

On the other hand, there are actually two stages in performing the mitzvah of petter chamor, (a) the redeeming and (b) the giving. In the redeeming step, the owner takes a lamb or kid (or other item worth as much as the donkey) and states that he is redeeming the donkey in exchange for the lamb, kid, or other item of value. Prior to making this statement, the owner recites a bracha, Asher ki’deshanu bemitz’vosav vetzivanu al pidyon petter chamor (Tosafos, Bechoros 11a; Shulchan Aruch, Yoreh Deah 321:6). The owner then declares that he is exchanging the seh or the other item for the kedusha of the donkey. As soon as he performs this exchange, the sanctity is removed from the petter chamor and one may use the donkey (Mishnah, Bechoros 12b). The donkey is redeemed at this point, notwithstanding that the kohein has not yet received the gift.

In the giving step, the owner gives the seh (or the item exchanged for the donkey) to the kohein as a gift. No bracha is recited on this step of the mitzvah, and there is much discussion among halachic authorities regarding why not (Taz, Yoreh Deah 321:7).

Although there are two different parts of this mitzvah, redeeming the kedusha from the firstborn, and giving the gift to the kohein, both parts of this mitzvah can be performed simultaneously, by giving the seh (or item of value) to the kohein and telling him that this is redemption for the donkey.

Safek

In the instance that there is an irresolvable question as to whether a donkey was a firstborn male, the owner sets aside a seh, either a sheep or a goat, to redeem the newborn male, but has no obligation to give the seh to a kohein. Since the foal may have sanctity, we redeem him, but since there is no proof that there is an obligation to give it to a kohein, the owner may keep the seh (Mishnah, Bechoros 9a). This is referred to in halacha as hamotzi meichaveiro alav harayah, he who wants to collect has the burden of proof. This principle, which the Gemara (Bava Kama 46a) refers to as “the major rule in adjudicating civil law,” means that one can insist on payment only when proof of the obligation is established without doubt. In our particular instance, the kohein can insist on payment only if he can prove that the animal is a petter rechem.

A practical case where this might happen is when a jenny’s first births are twins, one male and the other female, and the birth was unattended by a human. Assuming that there was no camera focusing on the birth, we have no way of knowing which twin was born first and whether there is a bechor.

2. Bechor beheimah tehorah

Petter rechem kosher animals have the sanctity of korbanos and are the property of the kohein. Should their sanctity be damaged by their becoming permanently blemished, they remain the property of a kohein, who is to have them shechted and eaten. (It may not be used for work, nor may it be shorn.) Unlike other korbanos that are redeemed when they become permanently blemished, a bechor is never redeemed, as stated in the pasuk that I quoted above “However, the firstborn calf, lamb or kid shall not be redeemed because it is holy” (Bamidbar 18:15-18).

Mum oveir

There are two types of blemishes that affect a korban. One is a temporary blemish, a mum oveir, that will eventually heal. An animal with a mum oveir cannot be offered as a korban until its blemish heals. The other type of blemish is a mum kavua, a permanent blemish. Once an animal has such a blemish, it may never be offered as a korban.

How do we know whether a blemish is permanent or temporary?

Some blemishes are obviously permanent and do not require expertise for their determination. However, it is often difficult to ascertain whether a blemish is permanent or temporary and the decision of an expert is required to ascertain that the animal has a permanent mum and may be shechted. As we see from the Gemara (Sanhedrin 5a), this expertise was regarded as the highest level of semicha, called yatir bechoros, and was granted only to rare individuals, even at the time of the Gemara.

There is a fundamental and fascinating passage of Gemara (Sanhedrin 5a-b). regarding the licensing of poskim in general, and specifically to authorizing slaughtering a bechor on the basis that the blemish it possesses is permanent. In this era, most of the Jewish population lived in Bavel, but all the yeshivos were in Eretz Yisrael. The level of Torah knowledge in Bavel was weak, and rabbonim moving to Bavel would be engaged heavily in teaching Torah and kiruv work. Prior to leaving for Bavel, there was a need to establish to what extent they could rule (pasken) on halacha. As the head of the Sanhedrin, only Rabbi Yehudah Hanasi, usually called simply Rebbi, the teacher of all of Kelal Yisrael, could render this decision and licensing.

“Rabbah bar Chonah (who was a nephew of Rav Chiya) was leaving for Bavel. Rav Chiya told Rebbi: ‘My nephew is going to Bavel. Does he have permission to pasken on kashrus matters?’ Rebbi permitted him.” The wording used by Rav Chiya to phrase his question, “Does he (Rabbah bar Chonah) have permission to pasken on kashrus matters?” [was yoreh?], was made with the tone voice of a question and not a statement. Rebbi responded — yoreh!, an affirmative statement. Ever since, this has become the terminology used to license someone who has sufficient halachic knowledge to interpret kashrus laws reliably and correctly, yoreh yoreh. Most people are surprised to discover that the doubling of the words yoreh yoreh was originally a question and answer: yoreh? yoreh! “Is he authorized to rule?” “Yes, he is.”

Continuing the passage of Gemara: Once Rebbi authorized Rabbah bar Chonah to rule on kashrus issues, Rav Chiya asked “yadin?” “Is he authorized to judge financial matters?” and Rebbi answered, “Yadin! Yes, he is.” At this point, Rav Chiya asked “yatir bechoros?,” “Is he authorized to permit the slaughter of a bechor because its blemish is permanent?” and Rebbi authorized this, also.

The Gemara continues: When Rav left for Bavel, Rav Chiya asked Rebbi “Yoreh?” and Rebbi answered affirmatively “Yoreh!” “Yadin?” “Yadin!”

“Yatir bechoros?,” Rebbi surprised everyone by answering “Al yatir bechoros,” “I do not authorize him to permit the slaughter of firstborn animals.” The Gemara inquires why, since Rav was known to be a greater scholar and, furthermore, he had extensive training in checking blemishes. The Gemara concludes that precisely because Rav was such an expert Rebbi did not authorize him. Rebbi was concerned that when Rav would permit blemishes, people would think that they understood why he had done so. In reality, they would not realize that the case in front of them was not similar to the case that Rav had permitted. This would result in people permitting temporary blemishes with the mistaken impression that Rav had permitted those same blemishes.

Today we do not consider anyone expert to rule on these laws. However, when there is a mum that is very obviously permanent, such as a broken leg or a blind eye, three shul attending people may rule together that the blemish is permanent and the animal may be slaughtered.

In this context, we find an interesting dispute in a Mishnah dating back to the era when there was a semicha allowing its recipient to rule whether a bechor had a permanent blemish. An animal fell into a pit, and in order to rule whether it has a blemish or not, we need to raise it from the pit. The tanna’im Rabbi Yehudah and Rabbi Shimon disagree as to whether this is permitted on Yom Tov (Beitzah 25b-26a). The Gemara then devotes a discussion regarding under which circumstances this would be permitted. Since we no longer allow an ordained expert to rule this law on his own, this case is not applicable (Shulchan Aruch, Orach Chayim 498:9).

Non-Jewish ownership

The tanna’im dispute whether partial ownership of a non-Jew of either the mother or the fetus exempts the offspring from the sanctity of bechor, either of a kosher animal or of petter chamor (Bechoros 2b-3a). The anonymous author of the Mishnah (Bechoros 2a, 13a, 16a) exempts these situations from the rule of bechor, whereas Rabbi Yehudah rules that the rule of bechor applies when the non-Jew owns only a small part. The halachic conclusion follows the Mishnah that these animals are exempt (Tosafos, Bechoros 3b).

There is an additional dispute among early amora’im (Bechoros 3a) how much of the mother must be possessed by the non-Jew to create this exemption. Rav Chisda and Rava rule that the non-Jew must own enough that, were his part to be removed, the animal would be unable to live, whereas Rav Huna exempts the animal even if the non-Jew’s portion is as small as the animal’s ear, whenever removing the part owned by the non-Jew would render the animal into a ba’al mum, a blemished animal inappropriate as a korban. The halacha follows the lenient opinion (Tosafos 3b s. v. Deka).

Since a bechor animal has sanctity that cannot be removed, having one around can potentially cause a lot of halachic problems. People might use the animal in ways that violate its sanctity, which is a Torah violation. To avoid these potential sins, the accepted practice is to carry out a sale of the pregnant mother before birthing so that the firstborn is not halachically a bechor. This can be done because the firstborn’s sanctity begins at the moment of its birth.

3. Pidyon haben

As I mentioned above, there are three types of petter chamor, and we have already discussed the firstborn donkey and the firstborn kosher animal. The third type is redeeming the firstborn son.

Safek pidyon haben

In the instance that there is an irresolvable question as to whether a baby boy was firstborn, there is no obligation altogether for the father to perform a pidyon haben because of the rule hamotzi meichaveiro alav harayah. Since no sanctity is being removed through the pidyon, it is simply a gift to the kohein, which Dad is under no obligation to do.

Conclusion

As we see from the stories of Yaakov and Eisav, Reuvein, and Efrayim and Menashe, that even before makas bechoros firstborn males had a special role in serving Hashem. At the time of makkas bechoros, firstborn male animals owned by Jews became sanctified. That moment also elevated the sanctity of the bechorim of Kelal Yisrael, particularly regarding the service to be performed in the Mishkan and the Beis Hamikdash. However, the bechorim lost their special status when they worshipped the eigel hazahav, and the Levi’im replaced them. The pidyon haben is to redeem the bechor from the “even higher level” of holiness that he received as a result of makas bechoros (see Seforno on Bamidbar 3:13). As a result, the bechor must undergo a redemption ceremony to make amends – this is both to compensate the kohein and to serve as a means of “redeeming” the kedusha. We see the everlasting benefits kept by the tribe of Levi for remaining faithful to Hashem at the time of the eigel hazahav.

The Rites of the Firstborn

Question #1: Firstborn Pachyderm

How does one redeem a firstborn elephant?

Question #2: The ten commandments

How many times does the Torah mention the mitzvos of bechor?

Question #3: Petter Chamor

“What are the laws of petter chamor?”

Question #4: Firstborn of the Levi

Is a levi required to redeem his firstborn donkey?

Foreword:

Parshas Bechukosai teaches that “No one may declare the firstborn among the animals that are to Hashem with a different status of holiness — whether it is a calf or a seh, it belongs to Hashem” (Vayikra 27:26).

The word seh has no accurate translation in English since it means both a lamb (a baby sheep) and a kid (a baby goat) (see Parshas Re’eih, Devarim 14:4). To minimize confusion, I will be using the word seh when referring to both lambs and kids.

To explain the halachic ramifications of the pasuk I just quoted, we need to define the word “firstborn.” In halacha, there are two different sets of laws that result from being firstborn, and the definition of firstborn is not the same for these two sets:

(I) Sanctity of the firstborn

From the time that the male firstborn in Egypt were eliminated in the last of the ten makkos, firstborn people, kosher beheimah animals and donkeys all have sanctity. This sanctity exists only when a mother produces a petter rechem, literally, the opener of the womb; i.e.,she gives birth naturally to a male firstborn, as opposed to a c-section.

(II) Financial rights of the firstborn

The rights of a bechor to a double portion in his father’s estate is only the father’s firstborn son and does not depend on whether he is a petter rechem (Mishnah, Bechoros 46a).

In other words, someone can be a bechor regarding the laws of receiving a double portion in his father’s estate, yet not have the sanctity of a bechor for pidyon haben purposes, and vice versa, one can be a bechor for pidyon haben purposes and not have any claim to a double portion in his father’s estate (Mishnah, Bechoros 46a).

The rest of this article will discuss the first category of firstborn, one who has sanctity — whether human, kosher beheimah or donkey — because he is a petter rechem.

The three types of sanctified petter rechem: humans, kosher animals and donkeys; have different rules. Allow me to explain this briefly.

1. Pidyon haben

Petter rechem boys born from parents, neither of whom is of a kohein or levi family (see Bechoros 4a), are “redeemed” by having the baby’s father pay the value of five silver sela’im to a kohein. In today’s currency, we follow the opinion of the Chazon Ish who considers five silver sela’im to be the equivalent of 100 grams of pure silver. (Silver coins are not pure silver, which can be bent and filed relatively easily, but are usually an alloy of 75% silver and 25% copper, which produces a harder coin.)

There is no prohibition to use the firstborn child even if he is not redeemed, nor does the kohein take the baby home if his father refuses to pay. Notwithstanding that the Torah and the Mishnah refer to this procedure as a “redemption,” it seems more accurate to describe this as a gift to the kohein (see Bamidbar 18:15-16).

2. Bechor beheimah tehorah

Petter rechem kosher animals have the sanctity of korbanos and are the property of the kohein. Should their sanctity be damaged by their becoming blemished, they remain the property of a kohein, and they are shechted and eaten. They may not be used for work, nor may they be sheared (Devarim 15:19). In other words, there is never any redemption of these petter rechem animals, as the Torah expresses in this week’s parsha, in the pasuk that I quoted above.

3. Petter chamor

Petter rechem donkeys have sanctity that must be removed by redemption. This mitzvah is called pidyon petter chamor. Should the owner not want to redeem his donkey, he is required to destroy it in a procedure called arifah, which is a specialized form of decapitation. It is prohibited min haTorah to derive any benefit from the remains of the beheaded donkey.

The redemption can be performed with either a sheep or a goat of any age, gender or value, or by paying the kohein the market value of the donkey at the time of its redemption with virtually anything of marketable value. (There are a few exceptions; for example, the donkey cannot be redeemed by giving the kohein a loan document or real estate.)

I mentioned above that the term seh of the Torah means either baby sheep or baby goat; the halacha is that redeeming the donkey may be performed with any sheep or goat – it is not limited to the young of either species (Mishnah, Bechoros 9a). The option of using a seh is to make the redemption less expensive for the owner of the petter chamor.

Firstborn pachyderm

The firstborn of kosher chayos, such as deer, antelope and giraffe, are not sanctified, nor are the firstborn of non-kosher animals sanctified, with the exception of donkeys (see Bechoros 5b). Therefore, we do not need be concerned about the difficulty or danger in performing arifah on a newborn elephant by decapitating him with a cleaver. This is exceptionally useful information since newborn male African elephants may weigh over 360 pounds and they are protected heavily both by mom and many aunts and cousins. Therefore, the answer to our opening question, “How does one redeem an elephant that is a bechor?” is, very simply, that one doesn’t.

The ten commandments

Now that we understand the basic laws of bechor, we should note how often the Torah mentions the mitzvos of sanctifying the bechor (the second of our opening questions). In all, I enumerate here ten times!!

1. Parshas Bo: “Make every bechor that opens any womb among the Benei Yisrael, whether it is human or animal, holy to Me; it is Mine” (Shemos 13:2). The importance of this pasuk is emphasized in that it is included in our tefillin, both of the arm and of the head. We should also note that this pasuk implies that the petter rechem of any animal, whether kosher or not, has sanctity. It also implies that the petter rechem of any non-kosher animal must be treated with sanctity, not exclusively donkeys. As I mentioned above, this is not the halacha, and we will mention at the end of this article why not.

2. Again in Parshas Bo: “When Hashem brings you to the land of the Canaanites that He swore to you and your forefathers and gives it to you, you shall hand over to Hashem every [human] male opener of the womb and every opener of the womb pushed out by your animal to Hashem. Furthermore, every donkey that opened the womb shall be redeemed with a seh, and, if you do not redeem it, you must decapitate it. Every firstborn human among your sons you shall redeem. In the future, when your child will ask you, ‘What is this (service)?’ you shall tell him that we perform these mitzvos because Hashem extracted us from the Land of Egypt… when Pharaoh stubbornly refused to release us, Hashem killed every firstborn in the land of Egypt, from the firstborn human to the firstborn animal. For this reason, I offer to Hashem every male (kosher animal) who opens the womb and I redeem the firstborn of my sons” (Shemos 13:10-15). This passage is also included in our tefillin. We should note that here it mentions specifically redeeming donkeys and no other non-kosher animals. Bear in mind, that, at the time of the Torah, camels and horses, both of which are non-kosher, were commonly owned by the Benei Yisrael. Therefore, it seems that when donkeys are mentioned in the Torah, it is to the exclusion of camels and horses.

3. Parshas Mishpatim: “The firstborn of your sons you shall give to Me — so shall you do to your ox and to your flock. For seven days it shall be with its mother, and on the eighth day you shall give it to Me” (Shemos 22:28-29).

4. Parshas Ki Sissa: “Every [human] opener of the womb is Mine, and all the males of your livestock, the openers of the bovines and flock. In addition, petter chamor shall be redeemed with a seh, but if you fail to redeem it, you must decapitate it. All the firstborn of your sons you shall redeem” (Shemos 34:19-20). Again, note here that, among the non-kosher animals, only donkeys are mentioned.

5. Parshas Bechukosai: “However, no one may declare the firstborn among the animals that are to Hashem with a different status of holiness — whether it is a calf or a seh, it belongs to Hashem” (Vayikra 27:26).

6. Parshas Bamidbar: “And behold, I have taken the levi’im from among the Benei Yisrael in lieu of each firstborn who opened the womb from the Benei Yisrael; the levi’im will be Mine. For every firstborn is Mine. On the day that I struck every firstborn in the land of Egypt I made holy to Me every firstborn in Israel, from man to animal. They are Mine, for I am Hashem” (Bamidbar 3:12-13).

7. Again in Parshas Bamidbar: “And Hashem spoke to Moshe saying: Take the levi’im in lieu of all the firstborn among the Benei Yisrael, and each animal of the levi’im in lieu of all their animals… and the redemptions of the 273 firstborn that there are more than there are levi’im, each should take five shekalim… and give it to Aharon and his sons as a redemption…” (Bamidbar 3:44-51).

8. Parshas Korach: “Every opener of the womb, among all flesh that is offered to Hashem, whether it is human or animal, shall be yours (i.e., to Aharon and his descendants). The firstborn among the humans should be redeemed, as well as the firstborn of the non-kosher animals. The redemption: from when he is a month old, you should redeem his value at five shekalim of silver, using the shekel of holy items – it is valued at twenty geirah. However, the firstborn calf or the firstborn lamb or the firstborn kid shall not be redeemed because it is holy; you shall throw its blood onto the altar and you shall burn its fat as a fire offering as a pleasant fragrance for Hashem” (Bamidbar 18:15-17). Note that this pasuk states, “firstborn of the non-kosher animals,” implying all non-kosher animals, not just donkeys.

9. Parshas Re’eih: “Every male firstborn that will be born to your cattle and your flock you shall sanctify to Hashem, your G-d. Do not work your firstborn ox and do not shear your firstborn flock. You shall eat it, you and your family, before Hashem, your G-d, each year in its year, in that very place that Hashem will choose. But should it have a blemish, such as it is lame or blind, any bad blemish – you shall not offer it to Hashem, your G-d. Instead, you shall eat it in your cities, whether you are tamei or tahor, just as [you eat] the antelope and the deer (Devarim 15:19-22).

10. Parshas Ki Seitzei: “He cannot provide the son of his beloved wife with the share of the firstborn instead of the firstborn son of the wife he loves less. He must recognize the firstborn son of the less loved wife who is the firstborn” (Devarim 21:16-17).

Other sources

In addition to these halachic sources, the Torah mentions the special status of the firstborn in many other places. For example, it emphasizes that Yishmael placed Yitzchak ahead of himself at Avraham’s funeral, notwithstanding that he, Yishmael, was firstborn (Bereishis 25:9). Chazal explain that this demonstrates that Yishmael had done teshuvah and recognized that Yitzchak was the more spiritually accomplished of the two.

Yaakov purchased from Esav his rights as firstborn (Bereishis 25:31-34); although they were twins born in the same childbirth, Eisav was the petter rechem.

Yosef assumed that his father will convey the greater intensity of his beracha on Menashe, his firstborn (Bereishis 48:13-19).

Petter chamor

At this point, let us examine the third of our opening questions: “What are the laws of pidyon petter chamor?”

There are two stages in performing the mitzvah of pidyon petter chamor, although they can be performed simultaneously. The two steps are (a) the redeeming and (b) the giving. In the redeeming step, the owner takes a lamb or kid (or other item worth as much as the donkey) and states that he is redeeming the donkey in exchange for the lamb, kid, or other item of value. Prior to making this statement, the owner recites a bracha, Asher ki’de’shanu bemitz’vosav vetzivanu al pidyon petter chamor (Tosafos, Bechoros 11a; Shulchan Aruch, Yoreh Deah 321:6). The owner has the right to decide to which kohein he gives the seh (see Rambam, Hilchos Bechoros 1:15). He then states that he is exchanging the seh or the other item for the kedusha of the donkey.

As soon as he performs this exchange, the sanctity is removed from the petter chamor and he may use the donkey (Mishnah, Bechoros 12b).

In the second step, the owner gives the seh (or the item exchanged for the donkey) to the kohein. No bracha is recited on this step of the mitzvah, and there is much discussion among halachic authorities why not (Taz, Yoreh Deah 321:7).

The two parts of this mitzvah are usually performed simultaneously by giving the seh to the kohein and telling him that this is redemption for the donkey.

Firstborn of the Levi

At this point, let us examine the last of our opening questions: Is a levi required to redeem his firstborn donkey?

The Mishnah teaches that the firstborn donkey of a kohein or of a levi is exempt from the mitzvah of pidyon petter chamor (Mishnah, Bechoros 3b). The Gemara (Bechoros 4a) derives this law from a hekeish, one of the hermeneutical rules whereby the laws of the Torah shebe’al peh, the Oral Torah, are included in the Torah shebiksav, the Written Torah. In this instance, the laws of pidyon haben are compared to those of pidyon petter chamor. There is no requirement to redeem a firstborn kohein or levi; similarly, there is no requirement to redeem a firstborn donkey that is owned by a kohein or a levi.

Non-Jewish ownership

The tanna’im dispute whether partial ownership by a non-Jew of the mother or the child of a kosher animal or donkey exempts the offspring from the status of bechor and petter chamor (Bechoros 2b-3a). The anonymous author of the Mishnah (Bechoros 2a, 13a, 16a) exempts these situations from the rule of bechor, whereas Rabbi Yehudah rules that the rule of bechor applies even when the Jew owns only a small part. The halachic conclusion follows the Mishnah that these animals are exempt (Tosafos, Bechoros 3b).

An additional dispute among the early amora’im (Bechoros 3a) concerns how much of the mother must be possessed by the non-Jew to create this exemption. Rav Chisda and Rava rule that the non-Jew must own enough that, were his part to be removed, the animal would be unable to live. Rav Huna disagrees, exempting the animal even if the non-Jew’s portion is as small as the animal’s ear. This is true, in his opinion, whenever removing the part owned by the non-Jew would render the animal into a ba’al mum, a blemished animal inappropriate as a korban. The halacha follows the lenient opinion (Tosafos 3b s. v. Deka). This is perhaps the most important aspect of the laws of bechor in today’s world, particularly for those who own livestock: performing a proper kinyan whereby a non-Jew owns part of the mother of any potential firstborn male lamb, kid or calf.

Why donkeys?

Why is there a special law requiring the redemption of petter rechem donkeys? Why is there no sanctity of firstborn camels, colts or elephant calves and no obligation to redeem them?

As I noted above, the Torah seems to contradict itself, in some places stating only that firstborn donkeys must be redeemed, whereas in others implying that this mitzvah applies to all firstborn non-kosher animals!

One answer provided to this question is that since all the firstborn animals owned by the Egyptians died, hundreds of thousands of firstborn camels, horses, dogs and cats also died. The Torah required redemption only for firstborn donkeys, making them the representative species for all the other non-kosher animals.

The Gemara (Bechoros 5b) states that this is to demonstrate our appreciation to the donkeys for assisting the Benei Yisrael upon our exiting Egypt. We left Egypt with massive amounts of booty, which were all packed on donkeys.

Appreciation of a donkey?

This is a bit strange. Does anyone think that a donkey appreciates that he has sanctity and therefore undergoes a redemption ceremony? He certainly does not appreciate it if someone refuses to redeem a donkey and beheads it instead. So, how does this demonstrate our hakaras hatov?

The answer is that our emphasizing the sanctity of donkeys in reward for the service they performed makes us realize the extent that we are required to have hakaras hatov. We owe this even to donkeys, notwithstanding that the chesed performed for us was so many thousands of years ago and that this particular donkey was certainly not involved! And we should certainly have hakaras hatov to Hashem, to our parents, teachers and all others who have helped us over the years.

For the continuation of our discussion on this topic, see “More on Bechor.”

Did Dovid Accept Lashon Hora?

A Narrative of Biblical and Halachic Intrigue

The Gemara quotes the great Amora, Rav, as saying: “Because Dovid HaMelech believed lashon hora, the Jewish kingdom was divided, the Jews worshipped idols, and we were exiled from our land” (Shabbos 56b). What does this enigmatic statement mean? Can Rav possibly be blaming Dovid, the author of Tehillim, the founder of the Jewish royal family and the ancestor of Moshiach, for causing the Churban? In connection with the prohibition of lashon hora, found in this week’s parsha (Vayikra 19:16), we should try to understand the sequence of events that led to Rav’s comments.

THE STORY

After successfully vanquishing the enemies of the Jewish people and solidifying his monarchy, Dovid HaMelech wants to find out if there are any surviving descendants of his predecessor and father-in-law Shaul, who was slain in battle with the Pelishtim. Dovid calls Tziva, a slave who has been managing Shaul’s properties, and inquires whether Shaul has any surviving offspring. Tziva informs Dovid that Yonasan, Shaul’s crown prince and Dovid’s closest friend, is survived by a lame and unscholarly son named Mefiboshes (not to be confused with a different Mefiboshes who was Shaul’s son, an outstanding Torah scholar, and a rebbe of Dovid [Berachos 4a]). Dovid meets Mefiboshes ben Yonasan and discovers that he is actually a talmid chacham (Shemuel II 9:1-5; Rashi, Shabbos 56a s.v. bilo davar). Thus, Dovid could already discern that Tziva has a tendency to libel Mefiboshes.

Dovid invites Mefiboshes ben Yonasan to join his royal household and to take all his meals with them. In addition, he awards him with the formal ownership of all of Shaul’s properties, thus making Tziva and all of Shaul’s other slaves into Mefiboshes’ property. In a few moments, Mefiboshes has been returned to the wealth and honor appropriate to the royalty into which he was born.

Shortly thereafter, Dovid’s own fortunes take a dismal turn when his own son Avshalom instigates a rebellion, forcing Dovid and his supporters to flee for their lives from Yerushalayim as Avshalom’s forces seize the capital.

IS MEFIBOSHES A TRAITOR?

As Dovid flees Yerushalayim, Tziva arrives with a team of donkeys laden with provisions for Dovid’s men. In answer to Dovid’s inquiries about Mefiboshes’ whereabouts, Tziva responds: “Behold, he remains in Yerushalayim, saying that now the Bnei Yisroel will coronate me, the scion of the true royal family, as their king.” In other words, according to Tziva, Mefiboshes feels that the Jews would prefer to restore the house of Shaul to the throne and abandon the infighting of Dovid’s fratricidal family (Metzudos David, Shemuel II 16:3). In reaction to Tziva’s report of Mefiboshes’ treachery, Dovid awards Tziva the property of Shaul that he had previously given to Mefiboshes (Shemuel II16:1- 4). If Mefiboshes has indeed rebelled, Dovid has the legal right to confiscate his property (see Rashi, Shabbos 56a s.v. devarim).

Was it correct for Dovid to grant Shaul’s estate to Tziva?

Although Dovid has the right to be concerned that Tziva’s account of Mefiboshes’ actions might have some basis, the Gemara quotes a dispute (soon to be analyzed) whether he was permitted to assume the story to be true. Acting out of concern is permitted and is halachically termed being chosheish (suspecting) that a story may be true (Niddah 61a). One may react defensively to even an unsubstantiated story, in order to protect one’s interests in the event that the story is true. However, accepting the story as definitely true and following up on that assumption violates the laws of lashon hora. One may not take definitive action, such as seizing property, as a result.

Thus, accepting Tziva’s account without sufficient proof seems to violate two serious prohibitions: (1) betzedek tishpot amisecha, judging people favorably,and (2) kabbalas lashon hora, believing lashon hora!

These issues become even more difficult when we recall that Dovid had already experienced Tziva’s maligning of Mefiboshes in a previous conversation. This was when Tziva reported to Dovid that Mefiboshes was unscholarly, and Dovid consequently discovered that Mefiboshes was a talmid chacham of stature. Furthermore, we know that Tziva had ulterior motives to unseat Mefiboshes from his place of honor. So how could Dovid act as if Tziva’s story was certainly true?

Before trying to understand Dovid’s actions, we will return to the chronicle of Avshalom’s revolt.

AVSHALOM’S DEFEAT

For a while, it appears that Avshalom will indeed wrest power from his father and establish himself as king. However, Dovid’s forces decimate Avshalom’s troops in battle and Avshalom himself is ignominiously trapped. While riding a mule, his hair becomes tangled in the branches of a tree and he is left swaying above ground as his mule continues without him. Yoav, Dovid’s commanding general, and his entourage dispatch Avshalom while he is hanging in midair.

MEFIBOSHES APPEARS

Upon Dovid’s triumphant return to Yerushalayim, a very unkempt Mefiboshes welcomes him. He has not trimmed his mustache, washed his legs, nor laundered his clothes since Dovid fled Yerushalayim (Shemuel II 19:25, as explained by Targum).

Dovid asks Mefiboshes why he failed to join Dovid’s men in their flight from Yerushalayim (Shemuel II 19:25- 26). After all, since Mefiboshes had been eating daily at Dovid’s table, remaining behind when Avshalom assumes control could be highly dangerous! (Malbim ad loc.).

Mefiboshes replies: “My lord the king, my slave (Tziva) tricked me by telling me that he would saddle the donkey so that I could join the king – for I am lame; and he (Tziva) slandered me to my lord the king. But My lord the king is as an angel of G-d, and should do as he sees fit. For all the members of my father’s household were guilty of the death penalty (for crimes we performed in Shaul’s service), yet you honored me to dine at your table. What right do I have to ever complain to the king?” (Shemuel II19:27- 29)

MEFIBOSHES’ LEGAL DEFENSE

Dovid is faced with a puzzling dilemma: If Tziva is correct, Mefiboshes is an ungrateful, scheming traitor. If Mefiboshes is correct, Tziva is the worst type of slanderer. One of them certainly deserves punishment; the question is which? Dovid is in the unenviable position of trying to determine which of them is guilty. Is there any way to resolve this dilemma?

Does circumstantial evidence imply who is guilty? Let us examine:

1. Although Mefiboshes’ alibi seems reasonable, certain aspects of it are weak. For one thing, it does not explain his untidy appearance when he came to greet Dovid. How could he appear before the king without first bathing, trimming his mustache and washing his clothes! Although he claimed to still be mourning Dovid’s flight from Yerushalayim, he should have tidied himself in Dovid’s honor. Not doing so implies that he is mourning Dovid’s successful return! (Rashi, Shabbos 56a s.v. devarim).

2. When questioned by Dovid as to why he remained in Yerushalayim under Avshalom, Mefiboshes responds, “My slave tricked me by telling me that he would saddle the donkey so that I could join the king – for I am lame. And he (Tziva) slandered me to my lord the king.” Granted that Tziva tricked Mefiboshes and took the donkeys with him, but how could Mefiboshes know that Tziva has been slandering him? If Mefiboshes was indeed abandoned in Yerushalayim when Tziva took the mounts, he would have no idea what transpired after that point (Binayahu). Unless, of course, he actually had done or said something scandalous in Tziva’s presence…

Although the evidence against Mefiboshes is not ironclad, it does leave a dissatisfying sense that he is not telling the whole story. Later in the article, I will present another piece of evidence against Mefiboshes.

DOVID’S RULING

Who should Dovid believe? Either Tziva is telling the truth, in which case Mefiboshes is a traitor and should certainly not be granted ownership of his late grandfather’s property, or Tziva is lying, in which case he is a lowlife and should certainly not be granted any new properties as reward!

What does Dovid do? He announces that Mefiboshes and Tziva should divide Shaul’s estate!

It is difficult to comprehend why Dovid divided the property between them.

TALMUDIC INSIGHTS

At this point, we will study the Gemara’s comments on this enigmatic story. The Gemara cites a dispute between Rav and Shemuel concerning Dovid’s actions. Rav states that Dovid violated the Torah’s prohibition of believing lashon hora, whereas Shemuel protests that Dovid was innocent (Shabbos 56a).

Why does Shemuel consider Dovid innocent? Does not confiscating the property show that he assumed Mefiboshes guilty without proof, which constitutes believing lashon hora?

Shemuel explains that Dovid had adequate anecdotal verification (devarim hanikarim) indicting Mefiboshes for treason. Although this is not evidence that a beis din could use for a ruling, since Dovid was judging as a king, and not as a beis din, he could base his decision on substantive circumstantial evidence (Be’er Mayim Chayim, Hilchos Lashon Hora 7:22).

There is a difficulty with this approach: If indeed Dovid was justified to consider Mefiboshes guilty, why did he divide the properties between Tziva and Mefiboshes. If Mefiboshes is guilty, Dovid should confiscate all the property, and if Mefiboshes is innocent, he (Mefiboshes) should keep it all. What does Dovid accomplish by depriving him of half and awarding it to Tziva?

The Maharsha offers an original approach to resolve this conundrum. Although Dovid felt his evidence against Mefiboshes was sufficient, he realized that he would never be able to prove absolutely whether Mefiboshes was a treacherous schemer or not. Therefore, Dovid treated the case as an unresolved issue — and divided the property between the two parties, knowing that one of them was receiving a highly undeserved reward.

The Maharsha then continues by explaining the next passage of this Gemara: When Dovid informed Mefiboshes that he was being deprived of half the estate, Mefiboshes reacted with tremendous fury, saying, “I just finished telling you that I was eagerly awaiting your return to the city in peace, and this is how you treat me? My complaints are not against you as much as they are against He who returned you in peace!”

The Maharsha concludes that Mefiboshes’ sacrilegious outburst sealed Dovid’s decision, demonstrating that Mefiboshes was not as faithful as he claimed. If he had been mourning Dovid’s flight, his happiness at seeing Dovid restored to his throne should have been great enough not to criticize Dovid for any wrongdoing. Indeed his outburst demonstrates that Tziva was indeed correct and that Mefiboshes was simply performing lip service.

(This last approach presents us with an unresolved problem. Dovid had already divided the estate between Mefiboshes and Tziva. If he now had further evidence of Mefiboshes’ treachery, why did he not therefore award the entire estate to Tziva? There are several possible ways one can attempt to resolve this difficulty.)

A DISPUTING OPINION

Until now, I have presented Shemuel’s approach that Dovid did not violate the laws of lashon hora. Rav disagrees, contending that Dovid violated halacha by accepting Tziva’s story; Dovid had no right to assume that Mefiboshes had done anything wrong and he therefore should not have confiscated any property.

HALACHIC QUESTION

There are two ways to explain Rav’s position, with a major halachic difference between them.

(1) Rav disagrees with the entire principle of accepting lashon hora when one has adequate circumstantial evidence.

(2) Rav accepts this principle, but disputes its application in this case. He feels that Dovid “convicted” Mefiboshes without sufficient evidence – thus violating the prohibition against accepting lashon hora.

Which of these two approaches is correct? Can we accept circumstantial evidence in halacha, or does this violate the laws of lashon hora?

This question concerns not only a judge or king, but also often affects each one of us. May we assume that someone we see behaving wrongly has indeed sinned, when the evidence indicates this, or do the mitzvos of judging favorably and not accepting lashon hora require positive evaluation even under these circumstances?

Many authorities conclude that if one sees absolutely convincing, circumstantial evidence one may assume that it is true (Sefer Yerayim #192; Smag, Lo Saaseh #10; Hagahos Maimoniyos, Dei’os 7:4; Magen Avraham 156:2). Others contend that we may not judge someone unfavorably unless we know for certain that he sinned, and one may never rely on circumstantial evidence to believe lashon hora (Menoras HaMaor, Lashon hora Chapter 18; Bris Moshe commentary to Smag, Lo Saaseh 10:5, explaining Rambam).

According to either interpretation of Rav’s opinion, Dovid should have rejected Mefiboshes’ guilt, and therefore confiscating his property was unjustified. Consequently, the division of Dovid’s royal legacy, the Jewish monarchy, was a personal punishment for Dovid. As we know, ten of the twelve tribes seceded from Dovid’s grandson, King Rechavam. The king appointed by the break-off tribes, Yeravam, later became concerned that his people might make pilgrimages to the Beis HaMikdash, and therefore established temples in his realm as alternative worship centers (Melachim I 12:28; note that the commentaries there dispute whether these temples were initially avodah zarah or only became avodah zarah later). Although this idolatry initially affected only the ten northern tribes, its nefarious influence ultimately spread to the two southern tribes of Yehudah and Binyomin. Eventually, this idol worship caused the destruction of the Beis HaMikdash, as Rav concludes in his statement:

“At the moment that Dovid said, ‘You and Tziva shall divide the property,’ a heavenly voice told him, ‘Rechavam and Yeravam will divide the monarchy’… Had Dovid not accepted the lashon hora, Dovid’s royal monarchy would never have been divided, the Jews would never have worshipped idols, and we would never have been exiled from our land.”

This quotation reflects Rav’s opinion. As mentioned above, Shemuel contends that Dovid was correct and that Rav’s blaming Dovid’s for the resulting tragedies is unfounded.

What lessons do we learn from this tragedy? On a halachic level, Shemuel derives from this discussion that when there are devarim hanikarim, strong circumstantial evidence, there is no requirement to judge someone favorably. From Rav’s perspective, we derive an almost opposite lesson: although Dovid certainly felt he has sufficient basis to “convict” Mefiboshes, he erred, and his error, albeit only a negligent mistake, caused terrible results.

We all know the enmity that believing lashon hora can cause. If we all emphasize judging one’s fellowman favorably, we will certainly assist the reconstruction of the house of Dovid in Yerushalayim!

Kosher Species

Question #1: How many mitzvos?

“Is keeping kosher more than one mitzvah?”

Question #2: Food for thought

“Am I required to eat each of the kosher species?”

Question #3: Check your scales

“Must I check fish for scales each time I purchase one?”

Introduction:

The Torah says (in parshas Shemini), Zos hachayah asher tocheilu, “These are the living things from which you may eat,” which the midrashei halacha and the Rambam count as mitzvos aseih. The Rambam considers these as lav haba miklal aseih, a prohibition verbalized as a mitzvas aseih, which is sometimes called an issur aseih. We noted that the Rambam counts four different mitzvos aseih, one to eat only kosher animals, one to eat only kosher fish, one to eat only kosher fowl, and one to eat only kosher grasshoppers. We also learned that the Rambam explains that he wrote the Sefer Hamitzvos to explain the rules that govern what is included in the listing of the 613 mitzvos. We now continue with part two of our article.

What type of positive mitzvah?

The first half of Sefer Hamitzvos consists of fourteen rules, called sherashim, that the Rambam established to determine whether something is counted as one of the 613 mitzvos. In the sixth shoresh, the Rambam rules that if a mitzvah is commanded in the Torah both as a positive commandment and as a negative prohibition, then it is counted as two of the 613 mitzvos — both as a mitzvas aseih and as a mitzvas lo sa’aseih. The Rambam explains that there are three types of mitzvos aseih in which this occurs.

1. In some instances, there is a positive mitzvah that is a flipside of the negative prohibition. For example, someone who observes Shabbos or Yom Tov fulfills a positive mitzvah (Pesachim 84a). There is also a negative prohibition which one violates by performing prohibited activity on Shabbos or Yom Tov.

Similarly, there is a positive mitzvah to observe shemittah, and negative ones involving performing prohibited activity during shemittah. Another example is fasting on Yom Kippur, which involves both a positive mitzvah of afflicting oneself and a lo sa’aseh.

2. A second type of positive mitzvah that accompanies a lo sa’aseh is what is called a lav shekadmo aseih — there is a mitzvah to do something, but one who violates the intent of the positive mitzvah will, at that time, also violate a lo sa’aseh. Two examples of this rule are the cases of the oneis and the motzi shem ra, both of whom are required by a mitzvas aseih to marry and remain married to the wronged woman (should she agree). Should he subsequently divorce her, he will violate a lo sa’aseh, in addition to violating the asei to remain married to her.

3. A third type of positive mitzvah that accompanies a lo sa’aseh is called lav hanitak le’aseih, in which the mitzvas aseih is the instruction that the Torah provides if someone violates the lo sa’aseh. Here are two examples of this situation: The mitzvas lo sa’aseh of nosar is to make sure not to leave over edible parts of a korban past the time that the Torah established for that particular korban. One who does leave over and violates the lo sa’aseh now becomes commanded to observe a mitzvah aseih of burning the leftovers.

A second example is the mitzvah of shiluach hakein, in which one is prohibited from taking the mother bird while she is fulfilling her motherly duties to her eggs or young. One who violates this prohibition by seizing the mother bird is now required to observe the positive mitzvah of setting her free.

We are now faced with a question: If the word tocheilu is a positive mitzvah, what is the Torah commanding us to do? It certainly does not fit the second or third of the three categories mentioned above. The second category would mean that there is a positive mitzvah that one is required to perform whose result one now wishes to abrogate. The mitzvah of tocheilu certainly does not fit this category. Similarly, tocheilu cannot fit the third category, because this mitzvah is not correcting an error.

If tocheilu is included in the first category, it would mean that one who eats non-kosher violates an aseih, also. Whether we can look at the mitzvah this way appears to be the point of departure between the Rambam and the Ramban. The Ramban wrote the earliest commentary to the Rambam’s Sefer Hamitzvos, with a goal of explaining the Behag’s approach and answering the questions that the Rambam asks on the Behag. At times, the Ramban takes issue with some of the Rambam’s 14 rules. However, the Ramban accepts the Rambam’s sixth rule that a mitzvah, such as Shabbos or Yom Tov, when expressed by the Torah both in a positive way and a negative one, is counted twice, both as a mitzvas aseih and as a mitzvas lo sa’aseh. However, the Ramban disagrees with the Rambam regarding these four mitzvos of identifying kosher species.

To quote the Ramban, “I see in this matter a major dispute (between the Behag and the Rambam) and, without any question, one of the opinions is erroneous. There are instances in which there is both a lo sa’aseh and an aseih in the same topic; however, both are not counted as mitzvos. An example is the permitted and forbidden animals, fish and fowl, where the Torah includes a positive statement, ‘this is the animal that you may eat,’ and Chazal interpret this to be a mitzvas aseih. Similarly, when it says, ‘you may eat any pure bird,’ this is counted as a positive mitzvah. And again, when it says, ‘this you may eat, from whatever is in the water.’ It is obvious that the intent of the Torah is not to say that when one eats an animal or a fish with the proper kosher signs that one fulfills a mitzvah, and that someone who traps them and then does not eat them is in violation of his observance of a positive mitzvah. The intent, clearly, is that one may eat only these species and not the non-kosher ones. This is called a lo sa’aseh that is derived from a positive statement (in Hebrew, this is called a lav haba miklal aseih), whose purpose is to establish that someone who violates the lo sa’aseh also violates an aseih.”

The Ramban then notes that in all of these instances, the Rambam counts as positive mitzvos that one check whether a species of animal, bird, fish or grasshopper is kosher. However, concludes the Ramban, “The Behag did not count them, because they do not include a positive activity, whereas avoiding eating the prohibited is already included in the lo sa’aseh. Consequently, referring to the prohibition in a positive way does not add to the mitzvah count in these instances, just as repeating the lo sa’aseh several times does not add an extra lo sa’aseh to the mitzvah count.”

The last point raised by the Ramban is mentioned by the Rambam and others. The Torah often repeats a prohibition many times. When the additional pasuk does not add any new halachic information, the additional reference does not constitute an additional mitzvah.

Be positive!

Many authorities rally to address the final point of the Ramban, that the Rambam’s inclusion of these four positive mitzvos must include some additional component or ruling to the halacha. Support for this approach can be brought from the way the Rambam, himself, mentions these mitzvos. In all four instances, the Rambam writes that we are commanded to check for the signs that the particular species is kosher. And he writes this in two places, once in the Mishneh Torah and another time in the Sefer Hamitzvos. There is also one time in the Mishneh Torah where the Rambam writes that the mitzvah is to “know” the kosher signs. What exactly does this mitzvah of checking or knowing entail?

What does a mitzvah add?

Many approaches are suggested to explain what the positive mitzvah might be including, according to the Rambam. Some understand that the mitzvah requires that one be completely familiar with the simanim of the kosher species and have hands-on experience. Book knowledge that split hooves and chewing cud are kosher signs, without knowing what these two terms mean, does not fulfill the mitzvah (Darchei Teshuvah 79:1, quoting Korban Aharon and Yad David).

A second approach is that someone who consumes food from a certain species, not knowing if it is kosher or not, who then discovers that he indeed ate a kosher animal, violates the mitzvas aseih for not checking the indicative factors first (Sefer Hachinuch; Pri To’ar, Yoreh Deah 79:1; Kinas Sofrim; see also Darchei Teshuvah 79:1). To quote the Sefer Hachinuch (Mitzvah #153) “One who violates this mitzvah because he checked only one siman and relied on that without checking for the other siman, even though it turns out that he ate from a kosher species, has neglected his observance of this mitzvah of checking simanim.”

What’s in a horn?

When the Sefer Hachinuch mentions this approach to explain the Rambam’s position, he adds a further comment that appears somewhat strange. He writes that there is also a requirement to know the simanim that identify whether a particular species is a beheimah or whether it is a chayah. There are several laws that are affected by this distinction, and the Gemara provides criteria, depending on the appearance of the animal’s horns, whereby one can identify whether a particular kosher species is a beheimah or a chayah.

However, this comment of the Sefer Hachinuch is very surprising. The Torah, as explained by the above-quoted comments of the Sifrei and the Sifra, includes a mitzvah that we identify whether a species is kosher or not. No matter how we understand this mitzvah of the Torah — and I will soon provide several other approaches — the mitzvah applies only to places where the Torah states that we may eat a certain variety of creature and then provides a defining characteristic or nomenclature. However, where do we see any mitzvah requiring one to identify whether a specific kosher species is a beheimah or a chayah?

The Minchas Chinuch answers that, in fact, horns do function as a secondary siman to determine whether a beheimah is kosher, although they do not function as a siman to determine whether a chayah is kosher. In other words, there are no non-kosher beheimos that bear horns, although there are non-kosher chayos that do. Thus, a beheimah having horns can be used to determine whether a species is kosher.

This explanation of the Minchas Chinuch is also a novel interpretation. The Torah provides two criteria to determine whether a mammal is of a kosher species: does it ruminate, and does it have completely split hooves. Granted that horns are a secondary characteristic, but where do we see that this is included in the Torah’s mitzvah?

More positive attitudes

There are also numerous technical answers why the Rambam counted tocheilu as separate mitzvos. Some authorities explain that one who checks the simanim of an unfamiliar species that he would like to eat, to see if it is kosher, fulfills a mitzvas aseih. This author is inclined to think that, according to this opinion, he should recite a brocha before checking, because that is what the Torah commanded one to do. We do not recite a brocha because of the machlokes haposkim as to whether this act indeed fulfills a mitzvas aseih.

We should note that the halachic authorities accept that once one recognizes a particular species as kosher, there is no further requirement to continue checking the kosher signs of this species (Minchas Chinuch 153; Darchei Teshuvah 79:1). Thus, there is no mitzvah to check for the scales of an obviously identifiable salmon.

Other positive approaches

Still others explain that the meaning of the Rambam’s mitzvas aseih is that one may not rely on the fact that a specific species is probably kosher. In general, there is a halacha that one may rely on rov. Upon this basis, someone not knowing whether a certain variety of bird or fish is kosher could rely on the fact that most fishes with a certain appearance are kosher, or that most birds are kosher. Although, in general, the halachic rule is that one may assume that what is before you is from the majority that are kosher, one may not consume an unfamiliar species, based on the information that there is a rov that this species is kosher (Shu”t HaRivosh #192).

There are other technical ways to explain the Rambam’s position. Some explain that one violates the mitzvas aseih by eating less than a kezayis, even though this is too small an amount to be culpable for violating the lo sa’aseh (Pri Megadim, quoted by Minchas Chinuch, Mitzvah #470 and by Maharam Shik, Mitzvah #154). The Minchas Chinuch (ad loc.), himself, suggests an alternative approach: Although one who consumes a non-kosher species in an unusual manner does not violate a lo sa’aseh, he will violate the mitzvas aseih min haTorah if he eats something that is not normally edible. This would be a novel and stringent idea in halacha, which has ramifications regarding the consumption of medicines and vitamins, a topic we have discussed in the past.

Conclusion

We see that there are halachic ramifications to the dispute between the Rambam and the Ramban as to whether there is a positive mitzvah to keep kosher, or at least, to eat only from kosher species. We should always hope and pray that the food we eat fulfills all the halachos that the Torah commands us.

Avraham, Father of the Nations

Question #1: Names

When praying or making a mishebeirach for a geir, how should we refer to him?

Question #2: Vows

If someone vowed not to benefit from the descendants of Avraham, is he permitted to benefit from a geir, who is not descended from Avraham?

Question #3: Shemoneh Esrei

Can a geir refer to Hashem as the G-d of our forefathers?

Foreword

In parshas Lech Lecha, Hashem told Avraham Avinu that his name was being changed to Avraham because He has appointed him the spiritual father of all nations (Bereishis 17:5). As the Gemara (Yerushalmi Bikkurim 1:4) expresses it, when he was called Avram, he was the “father” of the Arameans, interpreting Avram as a contraction of av Aram. When he was promoted to Avraham, he became the av hamon goyim, the “father” of all the many nations.

This name change is not merely an added title or an intangible tribute, but it incorporates a status that contains halachic ramifications, which is the subject of today’s article. Among the shaylos we will discuss is whether a geir is able to refer to Hashem as the G-d of our forefathers, when Avraham was not his biological father, nor was Yitzchak or Ya’akov.

Names

At this point, let us examine our opening question: “When praying or making a mishebeirach for a geir, how should we refer to him?” May we use his given, non-Jewish name? Should we use his biological mother’s name? Should we pray for a geir as the son/daughter of Avraham Avinu or as the son/daughter of Sarah Imeinu?

When providing the names of geirim in documents, such as kesubos and gittin, we refer to them as the son (or daughter) of Avraham. To quote the Beis Yosef (Even Ha’ezer 66): “In kesubos, the custom is to identify geirim as ploni ben Avraham.” In a get, the halacha is to write “ploni ben Avraham Avinu” (Even Ha’ezer 129:20). The Beis Shemuel explains that we should not write simply ben Avraham because this might create confusion that his biological father’s name is Avraham; a get must be written with precise identification. The Beis Shemuel suggests an alternative approach, to state in the get that he is a geir.

The universal practice when praying for a geir or a geyores for a refuah sheleimah or similar request, or upon reciting a mishebeirach is to refer to them as ben (or bas) Avraham. Similarly, a geir is called up to the Torah as ben Avraham. I am aware of people who pray for geirim or recite a mishebeirach for them as ben/bas Sarah. I am unaware of any halachic source for this practice, and I believe that it is based on an error. People make the assumption that since we usually pray for people by their mother’s name, we should use Sarah’s name instead of Avraham’s. However, I am unaware of anywhere in Tanach or Chazal that says that Sarah should be treated as the mother of the nations. The special status of being considered the “father” of all the nations was granted to Avraham Avinu only.

I will point out that Rav Moshe Feinstein had the following practice regarding the name used in a get for a geir. If the geir tzedek was halachically observant, then Rav Moshe referred to him or her in the get as ben Avraham Avinu or bas Avraham Avinu. If the person who “converted” to Judaism was never observant or is no longer observant, Rav Moshe referred to them in the get as giyura or giyurta, a term that is not disparaging and is used frequently in the Gemara as a highly respectful term to refer to geirim (Kiddushin 76b; Bava Basra 149a; Avodah Zarah 70a). Rav Moshe considered it a special honor to refer to a geir as ben or bas Avraham Avinu and he did not feel it proper to associate Avraham Avinu with someone who is not halachically observant, even if they once were. My experience is that this approach was followed by Rav Moshe’s talmidim and is followed today by their talmidim.

Vows

If someone vowed not to benefit from the descendants of Avraham, is he permitted to benefit from a geir, who is not descended from Avraham? The answer is that he may not (Rosh, Nedarim 31a; Tur and Shulchan Aruch, Yoreh Deah 217:40). The Rosh explains that geirim are included in this term because of the pasuk of av hamon goyim and also because Avraham Avinu is considered the first convert, and therefore anyone who observes the mitzvos is considered his (spiritual) progeny.

Shemoneh Esrei

At this point, we can discuss another of our opening questions: “Can a geir refer to Hashem as the G-d of our forefathers?”

We find a dispute among tana’im and rishonim regarding this question. Explaining these disputes will require an extensive introduction. We must first discuss a seemingly unrelated mitzvah, that of bringing the bikkurim. Each year, a property owner in Eretz Yisrael brings the first produce of the seven species grown in his land to the Beis Hamikdash.There, he presents his produce to the kohein and makes what we will refer to as a pilgrim’s declaration, thanking Hashem for His many salvations and gifts (Devarim 26:1-11). The Mishnah (Bikkurim 1:1) teaches that there are three levels of requirement to observe this mitzvah, depending on the extent of possession that the owner has of his parcel of land:

1. Meivi vekorei – Bring and read

The highest level is when the owner has two mitzvos, one of bringing the bikkurim and a second of reciting the pilgrim’s declaration, called mikra bikkurim by the Mishnah (Sotah 32a). This is performed when the fruit grew completely on land owned by one of the Benei Yisrael.

2. Meivi ve’eino korei – Bring but cannot read

The secondary level is when the owner brings the bikkurim to the Beis Hamikdash but may not recite the pilgrim’s declaration. One example of this is when the fruit grew in a way that it was not completely nourished by land owned by the pilgrim, but by land owned by someone else – even when the pilgrim has permission to use it (Mishnah Bikkurim 1:1 and Yerushalmi ad loc.). Another example is when the pilgrim sold his land before he brought the bikkurim to the Beis Hamikdash (Bikkurim 1:7). The author of the Mishnah places a geir into this category because, in that tanna’s opinion, a geir cannot declare that Hashem promised this land to his forefathers (Bikkurim 1:4).

3. Eino Meivi – May not bring

There is a lower level in which there is no mitzvah of bikkurim and therefore there is no sanctity on the fruits. An example of this is someone who owned the trees on which the new fruit grew, but does not own the land on which the trees grow (Bikkurim 1:6). Since his fruit are not the produce of land that Hashem gave him, he is excluded from the Torah’s definition of someone obligated to bring bikkurim.

From bikkurim to bensching

As I mentioned above, the Mishnah contends that a geir cannot declare that he received Eretz Yisrael as the land that Hashem gave to “us,” meaning the Jewish people, when neither the geir nor his ancestors received land when the Jewish people entered Eretz Yisrael. This tanna also holds that a geir must recite a modified form of the shemoneh esrei:since he is not a biological descendant of Avraham Avinu, he cannot recite the words Elokei avoseinu, “the G-d of our fathers,” at the beginning of the shemoneh esrei. The Mishnah implies that a son of parents who are both geirim also cannot recite Elokei avoseinu in the shemoneh esrei.

Some rishonim therefore rule that a geir may not be a chazzan or ba’al tefillah, which requires him to state Elokei avoseinu in order to be motzi someone who doesn’t know how to recite shemoneh esrei. The Mordechai (Mordechai, Megillah 786) mentions that, in his day (13^th century), the city of Würzburg (in Bavaria) did not permit a geir to be the chazzan.

On the other hand, the Talmud Yerushalmi quotes Rabbi Yehudah, who disputes the conclusion of the Mishnah and these other rulings, contending that since Avraham Avinu is called the father of all the nations, a geir may and should recite the bikkurim declaration. The Yerushalmi then quotes both Rabbi Yehoshua ben Levi and Rabbi Avahu, who rule according to Rabbi Yehudah, against the Mishnah. This ruling is quoted by the Rambam, the Rash and Rav Ovadyah of Bartenura in their commentaries and by many other rishonim (Sefer Yere’im; Ramban; Semag; Sefer Hachinuch; Mordechai, Megillah 786). From this it would appear that a geir may recite the declaration on the bikkurim and should recite the shemoneh esrei as any other Jew would. This approach disagrees with the Würzburg custom that I cited above.

Nevertheless, the Tosefta (Bikkurim 1:3) appears to have understood Rabbi Yehudah’s opinion differently, stating that although Rabbi Yehudah rules that most geirim bring bikkurim, they do not recite mikra bikkurim, since they cannot state “the land that You, Hashem, gave me” (Devarim 26:10). However, geirim who are descended from Yisro do recite mikra bikkurim.

Why is Yisro different from all other gentiles?

Since Yisro and his descendants received land in Eretz Yisrael, as implied by the pasuk in Bamidbar (10:32) and stated there in the Sifrei and by Rashi (see also Rashi, Shoftim 16:1), they can declare “the land that You, Hashem, gave me.”

Rabbeinu Tam’s opinion

In general, the opinion of Rabbeinu Tam carries much weight among the rishonim and the poskim, as is manifest in a long list of halachic practices where his approach is accepted over the rishonim who preceded him. (I am deliberately not listing any of these rulings so as not to take us off our topic.) Rabbeinu Tam (quoted by Tosafos, Bava Basra 81a s.v. Li’me’utei) questions how any geir could recite mikra bikkurim. This bikkurim passage states Arami oveid avi, vayeired Mitzrayma “my father was a lost Aramean, who then descended to Egypt;” according to Chazal, this refers to Ya’akov Avinu. Furthermore, the pilgrim refers to the travails of the Jewish people as the experiences of his own family. Rabbeinu Tam concludes that the Tosefta which permits a descendant of Yisro to recite mikra bikkurim refers to someone whose father’s side of his family is descended from Yisro and his mother’s side descended from Ya’akov Avinu. Rabbeinu Tam’s reasoning is that this person descended from geirim can recite mikra bikkurim on the basis of his mother’s side of the family. However, mikra bikkurim also states “the land that you gave me,” which is inaccurate for someone whose father is a geir even if his mother is from a Jewish family. Therefore, someone of this status cannot declare mikra bikkurim. Nevertheless, since Yisro’s descendants received land in Eretz Yisrael, a geir whose father’s side is descended from Yisro and his mother’s side includes descendants from Ya’akov Avinu may bring bikkurim and recite the parsha.

Based on this Tosefta, and on a passage in the Talmud Bavli (Makkos 19a) that quotes the Mishnah in Bikkurim without the disputing opinion of Rabbi Yehudah, Rabbeinu Tam concludes that a geir cannot recite any prayers or declarations that refers to our ancestors receiving the land or being descended from the avos. Rabbeinu Tam even bans someone descended from geirim from reciting these passages unless he also has antecedents born from the avos. Thus, Rabbeinu Tam rejects the opinion of the Yerushalmi, even suggesting that our text of this passage of Yerushalmi is erroneous and should be expunged. Following this approach, a geir may also not lead services; his approach was implemented by the community of Würzburg, as I cited above.

Bensching

Tosafos (Bava Basra 81a s.v. Li’me’utei) and the Tur (Orach Chayim 199) record a dispute among the rishonim how a geir recites bensching. Rabbeinu Tam and the Behag contend that a geir cannot recite the words she’hinchalta la’avoseinu, “that You bequeathed [Eretz Yisrael] to our fathers.” In their opinion, he cannot recite the exact same text of the bensching that Jews descended from Avraham Avinu do.

Leading a zimun

The next factor requires a bit of an introduction. In earlier generations, the person leading the zimun recited the entire bensching for the others, who fulfilled their mitzvah by listening to his bensching. This is the practice we follow for fulfilling the mitzvos of kiddush and havdalah, which we perform by listening to what is recited by the head of the household. Thus, Rabbeinu Tam rules that a geir cannot lead a zimun for bensching. The reason for this is that Rabbeinu Tam holds that a geir cannot be motzi someone else in bensching since it requires stating that we received from Hashem the wonderful land of Eretz Yisrael (see Devarim 8:7-10; and also Berachos 20b, Rashi s.v. Oh Derabbanan and Tosafos s.v. Nashim).

This opinion of Rabbeinu Tam is recorded by the Tur (Orach Chayim 199), along with the disputing position of Rabbeinu Tam’s disciple (and nephew), Rabbeinu Yitzchak, usually called simply the R’Y.

How do we paskin?

The consensus of the rishonim rejects Rabbeinu Tam’s approach, ruling like the R’Y that Avraham Avinu’s status as the av hamon goyim allowsa geir to recite the same version of birkas hamazon and shemoneh esrei that everyone else does, to be motzi others in birkas hamazon and shemoneh esrei, and to lead the services (Rambam, Hilchos Bikkurim 4:3; Tosafos, Bava Basra 81a s.v. Li’meutei; Ramban, Rashba and Ran in their respective commentaries to Bava Basra; Hagahos Maimoniyos, Hilchos Tefillah 8:20; Bartenura, Bikkurim 1:4; Beis Yosef, Orach Chayim 53). Uncharacteristically, the Shulchan Aruch (Orach Chayim 53:19) makes a very strong statement rejecting Rabbeinu Tam’s approach: “There are those who refuse to allow a geir to be the chazzan, but their opinion is rejected.”

There is an important conclusion to be brought from the fact that the Shulchan Aruch writes this in such a strong way. The Gemara states that a guest who refuses to lead the bensching when requested to by the host causes himself great harm (Berachos 55a). This is because Avraham Avinu was given a beracha that those who bless him would always be blessed. But, the opposite is also true – those that deny blessing Avraham Avinu or his descendants are cursed. This does not bode well for someone who has the opportunity to bless the benefactor of the se’udah and turns down the opportunity. Thus, since we conclude unlike Rabbeinu Tam, a geir should not turn down the opportunity to lead the bensching, an opportunity he would be unable to take advantage of according to Rabbeinu Tam.

Technically, the ill effect of declining to lead the bensching may apply only when the others do not recite birkas hamazon on their own. If they do recite birkas hamazon,including the blessing that the guest gives to the host, turning down the honor of leading the birkas hamazon may not have such dire consequences.

The Rambam’s rulings

Not all our questions are fully resolved, because we have an apparent contradiction in the rulings of the Rambam. Whereas he concludes that a geir brings bikkurim and recites the mikra bikkurim (Hilchos Bikkurim 4:3), he rules that a geir does not recite what is called viduy ma’asros (Hilchos Ma’aser Sheini 11:17). This is the declaration that a farm owner in Eretz Yisrael recites after the three year ma’aser cycle (two consecutive years of ma’aser sheini, which have sanctity and must be eaten in Yerushalayim, followed by a year in which ma’aser ani to be distributed to the poor is separated instead) that he has properly separated all that he is required to and has dealt with them all appropriately (Devarim 26:12-15). In the viduy ma’asros, we request from Hashem to “bless Your people, Yisrael, and the land that you swore that you would give us.” Because of this statement, the Rambam rules that a geir does not recite viduy ma’asros, even though he rules that a geir does recite the mikrah bikkurim, which also refers to the land given to our forefathers.

This question is asked by several early acharonim, who propose a variety of answers (Kapos Temarim, Sukkah 38; Bach, Yoreh Deah; Shu’t Sha’ar Efrayim #14; Magen Giborim; Birkei Yosef). I will share the answer provided by the Mahari Kurkus: The last Mishnah in Mesechta Ma’aser Sheini rules that a geir cannot recite the viduy of ma’aser sheini and there is no mention there of a dispute. Ma’aser Sheini should be treated differently from all the other laws mentioned because there the declaration states, “the land that you swore that you would give us.” Although a geir is considered the progeny of Avraham Avinu, he cannot say that Hashem swore to him that He would give him the holy land.

Conclusion

Once his name has been changed, the Gemara forbids calling Avraham by his earlier name, Avram. The question is asked that we do not find such a prohibition of calling Ya’akov by this name, even after his name was change to Yisrael. Quite the contrary, the pasuk itself refers to him as Ya’akov.

The Seforno (Bereishis 17:5) explains that the name Yisrael represents the goal of the world situation. Ultimately, the world will recognize his mission as Yisrael, but at the moment it does not. This is different from Avraham, who, from the moment his name is changed has a new role in the world – and, as we have seen, this role includes many halachic ramifications.

The Saga of the Frying Pan

Parshas Chukas is the first time the Jewish People found themselves with lots of treif keilim.

Photo by Zedcor Wholly Owned on Freeimages.com

Question #1: It Fries through the Air

When the frying oil is all absorbed, is the food considered cooked directly by fire?

Question #2: With the Greatest of Grease

How do you kasher a commercial deep fryer?

Question #3: The Daring Young Pan

Can a frying pan present a daring challenge?

Question #4: On the Frying Trapeze

How do you kasher a frying trapeze? (I also have not yet figured out what that is.)

Kashering

The Torah teaches the halachic process whereby we kasher a utensil, when it commands, kol davar asher yavo vo’eish ta’aviru vo’eish, “Any item that entered fire, shall be passed through fire” (Bamidbar 31:23), thereby implying that kashering a utensil that became non-kosher through direct contact with a flame requires burning the appliance in a flame — no other process will sufficiently kasher this utensil.

The Mishnah (Avodah Zarah 75b) teaches that, upon purchasing used kitchen equipment from a gentile, one kashers the equipment via one of the following procedures:

1) That which is used to broil or roast food directly in fire must be kashered directly in fire, a process called libun. As examples of this rule, the Mishnah chooses a barbecue spit and a grate used for roasting. Since these utensils absorbed non-kosher ta’am directly through fire, they must be kashered by burning them in fire.

2) That which is usually used for cooking in a liquid medium must be kashered in boiling water, which is called hag’alah. Bear in mind that it must be fully clean and rust-free before it is kashered.

Kebol’o kach polto

This Mishnah teaches a rule called kebol’o kach polto, the same way a vessel absorbed non-kosher substance is the way one uses to kasher it. If a utensil; absorbed the food directly through fire, hag’alah, i.e., placing the utensil in a pot of boiling water, will not remove the residue of prohibited substance sufficiently to kasher it.However, if a prohibited or chometz-dik food was cooked in a pot, it can be kashered by hag’alah, which boils out what was absorbed.

Libun versus hag’alah

Hag’alah will remove sufficiently what was absorbed by cooking (Taz, Yoreh Deah 121:7; see Pri Megadim, Orach Chayim 452:4 in Mishbetzos Zahav). Most late authorities understand that the dissimilarity between libun and hag’alah is because the two methods of kashering operate in different ways. Libun removes the non-kosher residue by burning it in situ, similar to the way we destroy the last remnants of our chometz before Pesach. The spit or grill may be used for your kosher barbecue, because the residual flavor from the non-kosher meat has now been completely consumed. (Note, however, that there are rishonim who appear to understand this topic differently.)

On the other hand, hag’alah, boiling, kashers by removing the residue. The word hag’alah means to expel. In the book of Iyov, it says, “Their houses are safe, without fear, and no punishment from G-d is upon them. Their bulls impregnate their cows ve’lo yag’il — without miscarrying” (Iyov 21:9-10). The Hebrew word yag’il, which I have translated as miscarrying,has the same root, gimel, ayin, lamed as the word hag’alah. Rashi (ad loc.) explains that this root means to expel, and he rallies proof from the Mishnah’s use of the word hag’alah to mean to expel or extract the non-kosher residue by use of boiling water. By the way, the same root can also bear the meaning disgust, something that you want to “expel from yourself.” All of these words — miscarry, expel, extract and disgust — carry the same basic concept. Thus, whatever taste of non-kosher food remains in the pot is dissolved and nullified in the water by the hag’alah (Shach, Yoreh Deah 121:17, quoting Re’ah; see also Pri Megadim, Orach Chayim 452:4 in Mishbetzos Zahav; Shu”t Igros Moshe, Yoreh Deah 1:60).

Therefore, libun could be used on an item requiring hag’alah, since it will satisfactorily burn up any residue. However, a utensil that requires libun cannot be kashered with hag’alah, since this does not remove sufficiently whatever was absorbed when the non-kosher food was broiled.

It fries through the air

At this point, we have “absorbed” enough background to discuss our opening question: When the frying oil is all absorbed, is the food considered cooked directly by fire?

When frying food, the food is cooked using a liquid medium, the oil. However, it is fairly common that, in the course of frying, the oil is used up and the food is fried without any visible liquid medium. At this point, do we view the absorption of the food into the pan to be direct, without a medium? Or do we contend that, since there is much oil absorbed both into the food and into the pan, it is still considered that the food was cooked via a liquid medium?

If we consider this to be direct absorption, the halachic conclusion is that kashering a frying pan requires libun. On the other hand, if we consider the absorption to be through the liquid medium of the oil, we can argue that a frying pan requires only hag’alah.

This issue is the subject of a dispute between two well-known rishonim who knew one another very well, the Rashba and the Rosh. (For a period of time, when the Rosh was a refugee from Germany who had fled to Spain, he lived as a guest in the home of the Rashba in Barcelona.) The Rashba (Toras Habayis, Bayis 4, Sha’ar 4) contends that a frying pan requires libun to kasher it, whereas the Rosh disagrees, arguing that it is sufficient to kasher a frying pan with hag’alah (Rosh, Pesachim 2:7; Shu”t Harosh 14:1).

With the greatest of grease

How do you kasher a commercial deep fryer?

By the way, it can be inferred from the way the Rashba expresses himself that he agrees with the Rosh that it is permitted to kasher a deep fryer with hag’alah, even it was used with treif oil. However, we will note another opinion shortly.

How do we rule?

This is where we are faced with a true conundrum. Without explaining his reasoning, the Shulchan Aruch states overtly that it depends on why we are kashering the pan. If we are kashering it because it was used for non-kosher, the Shulchan Aruch requires that we kasher it with libun (Yoreh Deah 121:4). However, if we are kashering it to make it Pesach-dik, he requires only hag’alah (Orach Chayim 451:11).

Although there are instances in which the Shulchan Aruch changed his mind, this is not one of those instances, since he writes himself that the law is different in the two cases (Yoreh Deah 121:4). So, what is the difference?

To explain the decision of the Shulchan Aruch, we find three approaches among the early acharonim.

First approach — contradictory Mishnayos!

The most common approach is based on a passage of Gemara toward the end of mesechta Avodah Zarah. A Mishnah in Zevachim seems to dispute one of the principles that I explained above. The Torah teaches that there is a mitzvah to eat the meat of korbanos, but that there is a time limit within which they may be eaten. After the korban’s time limit has passed, the leftover meat is called nosar, literally, leftover, and must be burnt. Eating it after this time violates a serious prohibition of the Torah.

What happens to the equipment used to cook the korban? The absorbed flavor remaining in the equipment becomes nosar and the equipment must be kashered. This means, essentially, that equipment used to cook or roast kodoshim must constantly be kashered.

How does one kasher the equipment? One would think that we would apply the same rules presented by the above-mentioned Mishnah in Avodah Zarah, i.e., that which is used directly on the fire requires libun, and that which is used for cooking in a liquid medium requires only hag’alah. However, the Mishnah in Zevachim states that a grill used to barbecue a korban requires only hag’alah (Zevachim 97a). This seems to say that there is a one-size-fits-all approach to kashering – and that hag’alah can be used to kasher anything, even that which absorbed the food directly via fire. This approach does not fit the rule of kebol’o kach polto.

As you can imagine, we are not the first ones to raise this question. The Gemara (Avodah Zarah 76a) does, and provides several answers. The conclusion of the Gemara is that, when the prohibited substance was permitted at the time of absorption (as in the case of meat of a korban, which is not yet nosar), a concept that the Gemara calls heteira bala, hag’alah is sufficient to kasher it. The opposite of heteira bala is issura bala, which means that the food was prohibited at the time that the absorption took place. The Mishnah in Avodah Zarah discussing used equipment purchased from a gentile is teaching the laws regarding issura bala.

Heteira bala

Why does heteira bala create a basis to be more lenient?

Some explain this phenomenon as follows: When a prohibited substance is absorbed through a medium, such as by cooking in water, hag’alah, boiling out the non-kosher vessel, will remove all of the prohibited substance. However, when the substance absorbed directly by fire, boiling it will not remove all of the prohibited substance. Nevertheless, it does remove most of the substance. When the vessel was used to cook a non-kosher substance, non-kosher flavor absorbed into the vessel and must be fully removed. But when the absorbed substance was kosher at the time that it was absorbed, the small amount of flavor that remains after the hag’alah was never declared by the Torah to be prohibited.

Kashering from fleishig

The Gemara mentions the concept of heteira bala relative to the absorption of permitted kodoshim, which will later become prohibited nosar. It is obvious that if one has equipment that absorbed fleishig residues and one wants to make it pareve, this is a case of heteira bala and will require only hag’alah. Following the logic I explained above, this means that although the Torah prohibited cooking and eating meat and milk together, it never prohibited cooking or eating with milk the small amount of meat flavor that remains after hag’alah was performed on a spit or grill.

Here is another example that I have been asked on several occasions:

In a food service operation, pareve baking trays were mistakenly used to bake chicken or meat. One might think that kashering these trays would require libun, since the absorption was direct from the meat into the tray, without any liquid medium. However, because of the principle of heteira bala, only hag’alah is required. Again, the logic here is that the meat flavor remaining in the trays after hag’alah is not sufficient to be included in the Torah’s prohibition of basar bechalav.

Is chometz considered heteira bala?

Since chometz is permitted to be eaten anytime but Pesach, it would seem that chometz should be considered heteira bala. This would mean that kashering chometz equipment for Pesach use would never require more than hag’alah. However, we find that there is a dispute among halachic authorities whether chometz is considered heteira bala or issura bala. Those who follow the stringent approach rule that, at the time of its use, chometz is what absorbed into the walls of the pot, and chometz may not be used on Pesach. The concept of heteira bala is applicable, in their opinion, to kodoshim products since, at the time that the grillwas used, the kodoshim products were not nosar; the small remnant that is left after the hag’alah cannot be called nosar. Chometz, on the other hand, was called chometz even before it was absorbed.

Whether chometz is considered heteira bala or issura bala is very germane in practical halacha. If it is considered heteira bala, then hag’alah will suffice to kasher all items for Pesach, and one is never required to kasher items with libun to make them Pesach–dik.

How do we rule?

Both the Shulchan Aruch and the Rema (Orach Chayim 451:4) conclude that chometz is considered issura bala. Therefore, one cannot kasher a grill used for chometz through hag’alah, only with libun. However, in a case of major financial loss (hefsed merubeh), one may rely on the opinion that chometz is heteira bala (Mishnah Berurah 451:32, citing Elya Rabbah and Gra).

Now let me return to our question: Why did the Shulchan Aruch rule that kashering a treif frying pan requires libun, whereas kashering a chometz-dik frying pan requires only hag’alah? Remember that we cited a dispute between the Rashba and the Rosh whether kashering a frying pan (from prohibited substances) requires libun or merely hag’alah. In addition, we have rishonim who contend that kashering from chometz never requires more than hag’alah. Thus, we have two different reasons to rule that, germane to Pesach, hag’alah suffices to kasher a frying pan, and only one reason if we are kashering it from prohibited food. Therefore, this explains why the Shulchan Aruch follows a more lenient approach regarding Pesach than he does regarding prohibited substance (see Beis Yosef, Levush, Taz and Shach to Yoreh Deah).

A second approach – from the frying pan into the fire

Based on a ruling found in the responsa of Rav Menachem Azaryah (usually abbreviated to “the Rama”) of Fanu (Shu”t Rama miFanu #96), the following approach is suggested: When cooking in a pot, water is typically used. Thus, the absorption into the pot took place via a medium that is itself kosher, and this might be the reason why hag’alah suffices to remove the prohibited substance from the pot. Since the non-kosher absorbed into the pot via a kosher medium, it does not get into the pot’s walls as deeply as it does when there is no kosher medium, which is the case when broiling or roasting, or, for that matter, frying using treif oil. When non-kosher meat is barbecued on a grill, the non-kosher absorbs directly into the rack or spit without any medium. That is why kashering to remove the prohibited food requires libun.

Similarly, when frying treif products, animal fat was presumably used at times as the medium for frying. In this situation, the medium used was itself non-kosher, and that is why the Shulchan Aruch ruled that we require libun when kashering treif pans. On the other hand, when chometz was fried, such as when someone made French toast, the oil is not chometz. Thus, the chometz always absorbed into the pan via a non-chometz medium, which is why hag’alah is satisfactory for kashering a chometz-dik frying pan(Notes of Rabbi Akiva Eiger to Yoreh Deah; Notes of the Chasam Sofer to Orach Chayim; Shu”t Chasam Sofer, Yoreh Deah #111; Machatzis Hashekel, Orach Chayim; Aruch Hashulchan, Yoreh Deah 121:11).

There are practical halachic differences regarding which approach we follow. According to the second approach, if we are certain that vegetable oil was always used when frying non-kosher meat, there would be no requirement to kasher with libun; hag’alah would suffice. This distinction would not exist according to the first approach.

There is another possible difference in practical halacha in the other direction. I mentioned above that, according to the Rashba, kashering a treif deep fryer may be done with hag’alah. However, it would seem that the Rama of Fanu would require libun, since the oil that was used was presumably some type of non-kosher, melted animal fat.

A third approach

Before I explain the third approach, I need to provide another introduction. A vessel that was used primarily with liquid, but on occasion was used without any liquid but — does it require libun to kasher it, because of the absorption that happened during the times that it was used without liquid, or may we be lenient to kasher it with hag’alah, since that is how it was used most of the time. This subject is disputed by the rishonim, Rabbeinu Tam, the Ra’avad (both on Avodah Zarah 76a) and others contend that this item must be kashered through libun, whereas the Ramban (op. cit.) rules that hag’alah is sufficient. This latter approach is called rov tashmisho, meaning that an item need be kashered only according to its primary use. (Because of space constraints, I will have to defer the explanation of this dispute to another time.)

Some acharonim explain the Shulchan Aruch’s reason for drawing a distinction between kashering a frying pan from chometz for Pesach, where he required only hag’alah, and kashering a treif frying pan, where he required libun, is because a kosher frying pan is used for many purposes, sometimes with water, sometimes with oil, and only upon rare occasion does all the oil burn off. Therefore, since rov tashmisho is with a liquid medium, hag’alah is sufficient. However, a frying pan that is used for treif is probably used most of the time for frying with melted animal fat, and most of the time the oil burns off. Therefore, the concept of rov tashmisho requires that the pan be kashered through libun (explanation of the Rama of Fanu presented by Pri Megadim, Orach Chayim 451:16 in Mishbetzos Zahav).

Conclusion

This article has provided a small introduction to some of the ideas of kashering. We now have a bit of understanding concerning a complicated halachic issue, with all sorts of ramifications. We can now get a sense of how much one’s rav or posek must keep in mind every time he answers one of our inquiries. Certainly, this is a time to appreciate his scholarship and his making himself available to us when we need him.

Under the Big Top

Since parshas Ki Sissa shares with us the most we will ever understand about Hashem, it is an opportune time to discuss:

“Why do some people wear big yarmulkes that cover their entire head?”

“How large must my yarmulke be?”

“Is there a halachic difference between going bareheaded indoors versus outdoors?”

“Why don’t we clip a waterproof yarmulke to our heads while we swim?”

“May one swear an oath, using G-d’s Name, while bareheaded?”

Answer:

All of the above questions concern the laws regarding covering one’s head and walking bareheaded, a topic mentioned several times in the Gemara. For example:

“Rabbi Huna, the son of Rabbi Yehoshua, did not walk four amos (about seven feet) with an uncovered head, saying, ‘The Shechinah is above my head’” (Kiddushin 31a). Similarly, the Gemara says elsewhere that Rabbi Huna the son of Rabbi Yehoshua said about himself, “I will be rewarded, because I never walked four amos with an uncovered head” (Shabbos 118b).

“Ravina was sitting in front of Rav Yirmiyah of Difti when a man passed by and did not cover his head. Ravina said to Rav Yirmiyah of Difti, ‘How arrogant is this man (for walking bareheaded in the presence of Torah scholars)?’ Rav Yirmiyah responded, ‘Perhaps he comes from the town of Mechasya, where the people are so familiar with talmidei chachamim (that in their presence the townspeople do not cover their heads)” (Kiddushin 33a).

“An astrologer told the mother of Rav Nachman bar Yitzchak: ‘Your son will be a thief.’ To avoid this from happening, she made sure that his head was always covered, and cautioned him: ‘Cover your head, so that you will always be in fear of Heaven and always pray for Divine assistance in serving Hashem.’ Rav Nachman bar Yitzchak was unaware of the reason behind her instructions, but always followed them meticulously, from his youth and on into adulthood, when he became a great Torah scholar. One day, he was studying Torah under a date palm that was not his, when his head covering fell off. Raising his eyes, he saw the dates, and his yetzer hora overwhelmed him. It was so powerful that he snapped off dates with his teeth, thus fulfilling the prophecy of the astrologer” (Shabbos 156b).

Mesechta Sofrim, which is a collection of beraisos, or halachic teachings of the tanna’im not included in the Mishnah, quotes a dispute whether someone whose head is uncovered

may lead the services by being poreis al shema, which means to recite kaddish and borchu that follow the pesukei dezimra. (There are various opinions as to how much of the prayer is included in poreis al shema, a topic beyond the scope of this article.) The first opinion, mentioned anonymously, permits someone bareheaded to lead the services, whereas the second opinion prohibits doing so, because one may not say Hashem’s name with an uncovered head (Sofrim 14:15). In a dispute of this nature, the general rule is that we follow the first opinion, although, in this particular dispute, we find authorities who rule according to the second opinion.

The Rambam about being bareheaded

The Rambam prohibits praying the shemoneh esrei bareheaded (Hilchos Tefillah 5:5), and he also states that it is appropriate for a talmid chacham to cover his head at all times (Hilchos Dei’os 5:6).

Interpreting the Talmudic sources

Based on the above sources, most, but not all, halachic authorities contend that, in Talmudic times, covering one’s head was performed on special occasions, such as when praying, reciting blessings, and in the presence of a Torah scholar, but was not always otherwise observed (Tur, Orach Chayim 8, as explained by Darkei Moshe; Shu”t Maharshal #72; Gra on Orach Chayim 8:2). These rulings imply that someone other than a talmid chacham is not required to cover his head, except when davening. As we will soon see, most authorities conclude that, today, one is required to cover one’s head, because of reasons that did not apply in the time of the Gemara.

A minority opinion

We must note that one prominent late authority, Rav Shelomo Kluger, understands the Talmudic sources in a different way. He contends that, even in earlier times, it was forbidden to leave one’s head completely uncovered. In his opinion, the passages that imply that a person may go bareheaded are, in fact, allowing him to have his head partially covered (Shu”t Ha’elef Lecha Shelomo #3).

Protecting from sin

According to all opinions, covering one’s head helps achieve yiras shamayim, being in constant recognition and awe of G-d’s presence, as borne out by the anecdote of Rav Nachman bar Yitzchak that I quoted above. Let us understand this story in its context, which concerns the topic of ein mazal leYisroel.

Ein mazal leYisroel

Hashem set up the world in such a way that the events that transpire in one’s life, and even one’s personality and tendencies, are influenced by one’s mazal. However, because of the principle of ein mazal leYisroel, one can override this preordained fortune through prayer. Recognizing that Hashem is The Source of all, and praying to Him for help and assistance, can change one’s situation.

We now understand what Rav Nachman bar Yitzchak’s mother did. The astrologer understood the mazalos and knew that her son was born under a mazal that would influence him to steal. Rav Nachman bar Yitzchak’s mother knew that although mazalos have a strong influence on a person, their power is not absolute. Therefore, she understood, correctly, that the astrologer’s diagnosis presented her with a reason to treat her son in a special way. Since prayer and being careful about mitzvah observance can offset the influence of mazalos, this is what she taught him, knowing that covering one’s head provides a strong influence. She was proven correct, because her son developed into a great Torah scholar and yerei shamayim, despite the influences of his personal mazalos. Still, only when he remained on guard and kept his head covered was he able to combat his tremendous drive to steal. The moment his head became uncovered, the temptation to steal overwhelmed him. He now knew that, in spite of his tremendous accomplishments in ruchniyus, he could not relax his guard, even for a second. We also understand why the custom developed that people cover their heads at all times, even though the Gemara did not require it.

Responsum of the Maharshal

With this background, we can understand the following responsum, penned by the sixteenth-century halachic luminary, Rav Shelomo Luria, known as the Maharshal. “I am unaware of a prohibition to recite a beracha without a cover on one’s head. Although the Terumas Hadeshen was certain that it is prohibited to mention G-d’s Name without one’s head being covered, I am unaware of the source of this ruling. He writes that it is a dispute in Mesechta Sofrim, and, furthermore, Rabbeinu Yerucham writes that it is prohibited to recite a beracha bareheaded. Even though I do not dispute the earlier authorities unless I find a major scholar on my side of the dispute, I am inclined to be lenient in ruling that one may recite a beracha and even recite keri’as shema bareheaded. I can prove this from a Midrash Rabbah that states that a human king requires people to rise and uncover their heads in respect, prior to reading a declaration that he has issued, which they then read with great awe and trepidation. Hakadosh Baruch Hu told the Jews that when you read My declaration, the shema, you are not required to stand while doing so, nor are you required to expose your heads.” The Maharshal notes that this midrash implies that uncovering one’s head while reciting shema is not required, and it is certainly not prohibited.

The Maharshal continues: “Despite my own proofs to the contrary, what can I do that people consider being bareheaded to be prohibited? However, I am astonished at the custom of treating uncovering one’s head as a prohibited activity, even when not praying. I have no idea where they got this from. The only source that we find about having one’s head uncovered is regarding a woman; it is only a midas chasidus (exemplary conduct) to be careful not to walk four amos bareheaded — but this midas chasidus applies only to someone walking four amos and not to one walking a shorter distance, as implied by the statement of Rav Huna the son of Rav Yehoshua… . Furthermore, I found written that being bareheaded is a concern only when one is outdoors… . Avoiding reciting G-d’s Name with an exposed head is a midas chasidus, just as is avoiding walking four amos bareheaded. However, the Rif wrote that we should protest someone’s entering a shul bareheaded, and the Tur wrote that one should not pray bareheaded, but did not prohibit reciting shema bareheaded.”

The Maharshal then concludes: “I am powerless to change this approach. Since people are in the practice of not being bareheaded anywhere, I may not be lenient in their presence. I heard of a talmid chacham who used to study Torah bareheaded, saying that the covering bothered him. Although, technically, there is nothing wrong with being bareheaded, even from a perspective of exemplary conduct (midas chasidus), provided one is not saying G-d’s Name, nevertheless, a talmid chacham should be careful not to do this, since people may think that he is not serious about his observance of Torah and mitzvos. Therefore, a talmid chacham should not study Torah bareheaded, even in the privacy of his own home, lest someone see him and, as a result, treat him without the proper respect he is due.”

In his conclusion, the Maharshal rules that a talmid chacham is required to cover his head. He also contends that one may recite a beracha by placing his hand over his head, despite the rule that one part of the body is not considered a proper cover over another part (see Berachos 24b and Shulchan Aruch, Orach Chayim 74:1). The Maharshal reasons that since, in his opinion, halacha does not require one to cover one’s head when saying Hashem’s Name, and the reason one needs to cover his head is only so that people not consider him to be someone who does not take the Torah seriously, it is sufficient to place one’s hand over one’s head to fulfill this concern.

Other authorities

Although the Gra (on Orach Chayim 8:2) echoes the Maharshal’s approach to the subject at hand, early poskim follow a more stringent approach. The Terumas Hadeshen (1:10), the Shulchan Aruch (Orach Chayim 91:3, 4) and the Rema (Orach Chayim 74:2) rule that it is prohibited to say Hashem’s Name bareheaded, following the second opinion of Mesechta Sofrim. As a result, they conclude that a person may not recite a beracha with only his hand on top of his head, although the Shulchan Aruch permits reciting a beracha with someone else’s hand covering your head. As I will explain shortly, the Taz agrees that one may not recite a beracha with only one’s hand on top of his head, but he permits standing or walking four amos with one’s hand on top of his head.

The Bach (comments to Tur Orach Chayim, Chapter 2) takes issue with a different lenient ruling of the Maharshal, contending that it is forbidden to walk bareheaded even less than four amos.

The Taz’s approach

Although the Maharshal concluded that the only reason one should not go bareheaded is because people will look at him askance, the Taz (Orach Chayim 8:3) concludes that, in our day, it is halachically prohibited to be bareheaded. In his opinion, since the gentiles of the Western world are meticulous to uncover their heads upon entering a building, being bareheaded violates the law of bechukoseihem lo seileichu (Vayikra 18:3), one may not follow the practices of the gentiles. This lo saaseh of the Torah is often called chukos akum. There are many opinions among the rishonim and the poskim as tothe exact definition of what is included under chukos akum. The Taz explains that since the gentiles consider it unacceptable to have one’s head covered indoors, uncovering one’s head violates this prohibition.

Thus, according to the Taz, there are two different reasons to have one’s head covered: to encourage one’s yiras shamayim and because of chukos akum. Placing one’s hand over one’s head is sufficient to avoid chukos akum, since this shows that one does not want to sit bareheaded, but it is not sufficient to allow one to recite a beracha.

Bareheaded indoors

Based on the Maharshal, the Be’er Heiteiv (Orach Chayim 2:6) rules that, under extenuating circumstances, one is permitted to have one’s head exposed while indoors. However, the Bechor Shor (Shabbos 118b) opposes this ruling, contending that having one’s head exposed indoors is a more serious violation of chukos akum than outdoors, since the practice of the gentiles is deliberately to be bareheaded indoors.

At this point, we can return to one of our original questions: “Is there a halachic difference between going bareheaded indoors versus outdoors?”

According to the Maharshal and the Be’er Heiteiv, although, under normal circumstances, one should cover one’s head in both venues, walking bareheaded outdoors is of greater concern. Under extenuating circumstances, the Be’er Heiteiv permitted walking indoors bareheaded. However, the Bechor Shor considers walking bareheaded indoors to be a more serious violation of halacha, since it violates chukos akum, whereas walking outdoors with one’s head exposed violates only the minhag Yisroel.

Livelihood

Although Rav Moshe Feinstein rules according to the Taz that one is required to cover one’s head whether indoors or outdoors, he concludes that when one’s employment or livelihood may be jeopardized, it is permitted to work bareheaded. This ruling applies only while someone is at his place of work, but once he leaves his place of employment, he must cover his head, since his livelihood is no longer jeopardized (Shu”t Igros Moshe, Orach Chayim 1:1 and 4:2; Choshen Mishpat 1:93). (Those interested in seeing two very different approaches to this question are encouraged to compare Shu”t Nachalas Binyamin #30 and Shu”t Melamed Leho’il, Yoreh Deah, #56.)

Different gentiles

Some authorities note that the Taz’s reason should apply only in Western countries and other places where the gentiles have a specific practice to uncover their heads. However, in places where the gentiles have no such concerns, such as in Moslem countries, there is no prohibition of chukos akum in leaving one’s head uncovered (Shu”t Igros Moshe, Orach Chayim 1:1). It may still be prohibited because of Jewish custom.

Swearing bareheaded

At this point, let us examine a different one of our opening questions: “May one swear an oath, using G-d’s Name, while bareheaded?”

This question returns us to the dispute in Mesechta Sofrim that I quoted earlier, whether one may recite Hashem’s Name bareheaded. According to the halachic authorities who rule like the first tanna, there is nothing technically wrong with reciting Hashem’s Name bareheaded. Even among those authorities, such as the Terumas Hadeshen (1:10), who rule like the second tanna and prohibit enunciating Hashem’s Name bareheaded, many, including the Terumas Hadeshen himself (2:203), rule that one may recite an oath bareheaded. For example, the Beis Lechem Yehudah (Yoreh Deah 157:5) rules that, when no other option exists, it is permitted to swear an oath while bareheaded.

Under the big top

At this point, we can examine two of our opening questions:

“Why do some people where big yarmulkes that cover their entire head?”

“How large must my yarmulke be?”

In the above-quoted responsum of Rav Shelomo Kluger, he ruled that one is required to cover one’s head completely when walking outdoors four amos or more. When walking less than this distance, or when walking indoors, one must cover one’s head, but it does not need to be covered completely. This explains why some people wear big yarmulkes that cover their entire head.

However, this ruling is not universally accepted. Rav Moshe Feinstein was asked how can people walk in the street wearing only a yarmulke, when Rav Shelomo Kluger required covering one’s entire head? Rav Moshe demonstrates that all the major authorities disagreed with Rav Kluger’s ruling. Rav Moshe concludes that even a small yarmulke meets the halachic requirements, but that individuals who would like to follow the more stringent opinion of Rav Kluger with regard to walking outside should cover their heads in a way that covers more than half the top of the head.

Swimming bareheaded

Previously, I quoted the following question: “Why don’t we clip a waterproof yarmulke to our heads while we swim?”

One of the authorities mentioned above, the Bechor Shor, rules that there is no requirement to cover your head while swimming or while walking from the changing room to the mikveh, not even as a midas chasidus. He demonstrates from passages of the Gemara that midas chasidus does not include covering your head in the mikveh, and also notes that swimming bareheaded does not violate chukas akum, since it is obvious that the uncovered head is not because one is trying to mimic gentile practice.

Conclusion

We see from the halachic sources that covering one’s head was a highly respected practice that assisted a person’s growth in yiras shamayim. With time, covering one’s head became part of the “uniform” of the Jewish man. In addition, there are other halachic reasons to keep one’s head covered, such as chukos akum. When donning a yarmulke or other head covering, one should avail himself of the opportunity to think about our Father in Heaven.

More on Seudah Shelishis

There are two reasons why we are studying the topic of seudah shelishis this week. First of all, the 39 melachos of Shabbos are derived from the laws of the building of the Mishkan, making the laws of Shabbos appropriate for this week. Secondly, in a few short weeks we will be celebrating the rare observance of Erev Pesach that falls on Shabbos. Observing that phenomenon requires knowledge of the laws of eating three meals on Shabbos. So, we are getting prepared in advance

Question #1: Double on Friday!

Does someone who eats two meals on Friday night and only one on Shabbos day fulfill the mitzvah of eating three meals on Shabbos?

Question #2: Split Feature

May I divide my Shabbos morning meal in half, thereby fulfilling seudah shelishis?

Question #3: Early Seudah Shelishis

How early may I eat seudah shelishis?

Answer

In an article I published recently, we discussed the mitzvah to eat three meals on Shabbos, which might be required min haTorah. We learned of the dispute between tanna’im whether the requirement is to eat three meals during the course of the entire Shabbos, or whether it is to eat three meals during the daytime of Shabbos, plus a Friday evening meal, for a total of four meals. We also learned that the rishonim disagree on whether the last of the Shabbos meals must include bread. The conclusion of the Shulchan Aruch and most late authorities requires eating bread for the third Shabbos meal, and that this should be done by reciting hamotzi upon two whole loaves of bread or rolls (lechem mishneh). Both men and women are obligated to fulfill the mitzvah of eating three meals on Shabbos, despite the fact that it is a time-bound positive mitzvah (mitzvas aseih sheha’zeman grama).

We have not yet discussed or resolved several halachic issues germane to the mitzvah of eating three seudos on Shabbos. Is there a time frame within which these three meals must be eaten? For example, may I eat all three meals Friday night? Let’s say that after the Friday night seudah, Reuven decides to make hamotzi when attending a neighbor’s shalom zachor. Or, perhaps, he joined a Friday night sheva berachos for dessert and made hamotzi to satisfy the requirements of a minyan. Upon returning home after the bread, beer, peanuts and chickpeas of the shalom zachor, or the bread, cake, pareve ice cream and wine of the sheva berachos, Reuven makes hamotzi again and has a third seudah. Has he now fulfilled eating the three meals of Shabbos and can sleep (or diet) the entire Shabbos day?

Alternatively, Shimon is invited to a sit-down hamotzi kiddush after an early minyan Shabbos morning. His wife, who prefers to catch up on some much-needed shuteye on Shabbos morning, sleeps until eleven, and then, when Shimon returns from the morning kiddush, joins him for a splendid repast that ends with plenty of time for him to learn with each of his seven sons before he leaves to catch the earliest mincha gedolah minyan in the neighborhood. His wife still needs to eat seudah shelishis, but has Shimon now fulfilled his obligation to eat three meals on Shabbos, one on Friday night and two on Shabbos morning?

Or, an actual shaylah that I was once asked. A mohel had a Shabbos bris to perform that was a considerable distance from his home, and he could not join them for the bris seudah. In order to daven in shul and attend the bris, his only option was to leave his home early Shabbos morning, daven in a shul near the bris, perform the bris and then walk back, arriving home on Shabbos afternoon. Does he fulfill the three meals of Shabbos by eating two of them either on Friday night or on Shabbos afternoon?

A similar shaylah often presents itself among nurses, doctors, other emergency personnel or family members who must be in the hospital on Shabbos or in another setting in which they have little control over their schedule. Does one fulfill the three meals of Shabbos by eating two of them either Friday night or Shabbos afternoon?

Rabbi Chidka

To answer these questions, we will discuss a beraysa that records a dispute between the tanna kamma and Rabbi Chidka, whether we are required to eat three meals on Shabbos or four (Shabbos 117b-118a).

The pasuk in the Torah says, “And Moshe said, eat it today, for today is Shabbos for Hashem. Today you will not find it [the mann] in the field” (Shemos 16:25). The requirement to eat three meals on Shabbos is derived from this pasuk, because the word hayom is written three times. The tanna kamma understands that the requirement is to eat three meals over the course of Shabbos, whereas Rabbi Chikda learns that three meals required during Shabbos day, with an additional requirement to eat a meal on Friday night – for a total of four meals.

Proof from a Mishnah

The Gemara endeavors to prove whether a Mishnah holds like the tanna kamma, like Rabbi Chidka, or perhaps like neither. Before quoting this Mishnah, I need to provide an introduction. The Mishnah (ibid. 117b) discusses a situation in which a house is burning on Shabbos, but there is no risk to life from the fire (see Rema, Orach Chayim 334:26) – for example, all the people in the house can exit safely, and there is no risk of the fire spreading to another building; perhaps it is a farmhouse or exurban house very distant from any neighbors. It is also discussing a situation in which taking items out of the burning house does not involve any prohibition against carrying on Shabbos – in other words, there is an eruv or other halachically acceptable way to carry the items out of the house.

Under the above conditions, Chazal allowed removing from the burning house only as much food as is needed to provide for the meals of Shabbos.

In these circumstances, why do Chazal limit how much one may carry out of the house?

The Gemara explains that the concern is that since a person becomes confused when he may lose money, he might violate Shabbos in ways that are not permitted, such as by extinguishing the fire (Shabbos 117b). The concern is that once someone gets involved in saving things from a fire, he may forget that it is Shabbos (see Tosafos Yom Tov). By providing very specific rules as to what he may save from the fire and what he may not, Chazal ensure that he will not forget that it is Shabbos, and he will be attentive to what he is permitted to do even under stressful circumstances. This demonstrates the absolute brilliance and depth of understanding of the human psyche that Chazal displayed in the way they created their takkanos.

The Mishnah mentions a dispute concerning how much food may be removed from the fire. Theunnamed first opinion (stam Mishnah) rules that it is permitted to save enough for the meals that he intends to eat on Shabbos, but no food for after Shabbos – not even for melaveh malkah, the meal of motza’ei Shabbos. Therefore, the stam Mishnah states that if a fire began on Friday night, it is permitted to remove from the burning house three Shabbos meals. If the fire started Shabbos morning, it is permitted to remove food for two meals. And if it is in the afternoon, which the Mishnah calls “mincha,” it is permitted to save only one meal.

Rabbi Yosi disagrees, ruling that it is always permitted to remove three meals. He contends that once it is sometimes permitted to save three meals, the gezeirah of how much to remove is not contingent on when during the Shabbos day the fire is discovered – it is always permitted to save three meals (Rashi to the Mishnah, Shabbos 117b).

How much can you drink?

By the way, according to all opinions it is permitted to remove as much beverage as you can possibly drink, even late in the afternoon, since a person is never certain how much he might want to drink (Tosefes Shabbos, cited in Biur Halacha 334:1 s.v. Uveshacharis). I am unaware of any distinction made between soft drinks and harder beverages. Thus, although chas veshalom that anyone should ever have a household fire, bear in mind that, within the eruv, you can haul out your entire supply of Chivas Regal on Shabbos.

Tanna kamma or Rabbi Chidka?

In order to understand the proofs regarding whether the three meals of Shabbos must be eaten at certain times of the day, we need to analyze a passage of Gemara. The Gemara seeks clarity as to whether the Mishnah holds like the tanna kamma that there is a requirement to eat three meals on Shabbos, or like Rabbi Chidka, who requires four meals. Ultimately, this depends on how we understand the Mishnah. When the Mishnah permits saving three meals from a burning house on Friday evening, was it discussing someone who had already consumed his Friday night repast when he discovered the fire, or someone who had not yet eaten his meal? This technical question will reveal to us whether the Mishnah holds like the tanna kamma or like Rabbi Chidka. If he has already eaten his Friday night meal, yet the Mishnah still permits saving three meals, clearly the Mishnah holds according to Rabbi Chidka that three additional meals are to be consumed on Shabbos.

If the Mishnah’s case was when he has not yet eaten the Friday night meal, the Mishnah holds like the tanna kamma, since it allows saving three meals and not four, thus not allowing for the fourth meal required by Rabbi Chidka. Since there is no way to know whether the Mishnah’s fire was discovered before or after he ate his Shabbos meal, we cannot prove from this part of the Mishnah on its own whether its author held like the tanna kamma or Rabbi Chidka.

A similar discussion takes place regarding the case in the Mishnah when the homeowner discovers a fire on Shabbos morning – and there, the Mishnah rules that he can save two meals. If the Mishnah refers to someone who has not yet eaten his Shabbos morning repast, and yet it holds that he saves two meals, the Mishnah holds like the tanna kamma. On the other hand, if he has already eaten his Shabbos morning repast, and the Mishnah permits saving two meals, the Mishnah must hold like Rabbi Chidka, who contends that he has two more meals to eat. As with our case above, it is unclear whether this Mishnah is describing someone who discovered the fire before he ate his morning meal or after. Although it is clear that the Mishnah’s author had an opinion regarding the dispute between the tanna kamma and Rabbi Chidka, we cannot determine which way he held on the basis of this part of the Mishnah alone.

The same analysis is germane to the Mishnah’s ruling regarding saving only one meal on Shabbos afternoon, a time period which the Mishnah calls “mincha.” If the Mishnah refers to someone who has not yet eaten his Shabbos afternoon meal, yet it holds that he can save only one meal, then we know that the Mishnah holds like the tanna kamma. On the other hand, if he has already eaten his seudah shelishis and the Mishnah holds that he can save another meal, the Mishnah must hold like Rabbi Chidka, who contends that he has yet to eat a fourth meal. Here, too, we cannot determine which way the Mishnah holds.

Before we discuss the Gemara’s conclusion about whether the Mishnah requires three or four seudos, let us note several important observations. Although the beraysa mentions the position of Rabbi Chidka, there is no allusion as to when Rabbi Chidka holds that the three meals should be eaten, other than that they must all be eaten during the daytime part of Shabbos.

Now, if the Mishnah is according to Rabbi Chidka, it could be possible that on Shabbos afternoon a person could still have two meals to eat. Yet the Mishnah allows only one meal to be saved at “mincha” time. This implies that, according to Rabbi Chidka, he is required to eat one meal Shabbos morning, a second before the time called mincha, and a third sometime thereafter.

Based on the assumption of the Mishnah that mincha time is before someone has eaten their last meal of Shabbos, Tosafos rules that seudah shelishis must be eaten after mincha time (Shabbos 118a s.v. Bamincha). This is also the opinion of several other rishonim (Rambam, Hilchos Shabbos 30:9; Hagahos Maimaniyos ad loc. quoting Rabbeinu Tam; see Mordechai, #397). Thus, according to these rishonim, Shimon, who ate two seudos on Shabbos morning, did not fulfill the mitzvah of eating three meals on Shabbos, since he ate his third meal in the morning and did not wait until the afternoon to eat it. Certainly, Reuven, who ate all three meals at night, did not fulfill this mitzvah correctly.

Ba’al Halachos Gedolos

The Ba’al Halachos Gedolos (usually abbreviated Behag) has a different approach. He rules that it is permitted to split the Shabbos morning meal in half, bensch in the middle of the meal and wash again – and thereby it qualifies as two meals, (Shabbos 6:19:2). The rishonim cite other evidence to this practice from other passages of Gemara: one passage that discusses how much chometz you can leave over when erev Pesach falls on Shabbos, and another regarding washing dishes on Shabbos that will be used in the course of Shabbos. Tosafos notes this to have been a common custom, but raises two objections to the practice. First, seudah shelishis must be eaten in the afternoon, as is implied by the Gemara in Shabbos quoted above, and these people ate in the morning. This objection is deflected by other rishonim. The Mordechai (Shabbos #397), quoting Rabbi Eliezer of Metz, the author of Sefer Yerei’im, and others, explains that the Mishnah is simply estimating how much food a person would usually consume during that part of the day, but not delineating when the meal must be eaten (see also Rosh, Shabbos 16:5).

Beracha she’einah tzericha

The second objection of Tosafos is that the method suggested by the Behag involves reciting berachos she’einan tzerichos – berachos that are unnecessary, since a person is bensching and reciting new berachos of netilas yadayim and hamotzi only in order to count one meal as two.

Obviously, the Behag was not concerned that this practice generates berachos she’einan tzerichos. Some authorities explain that since the purpose of splitting the meal this way is to fulfill the mitzvah of eating three meals on Shabbos, that itself makes all the berachos purposeful. A beracha she’einah tzericha is, by definition, a beracha recited without any purpose at all.

Despite Tosafos’ objections, the Behag’s approach is quoted approvingly by the Ran, who explains that it is not necessary to fully interrupt the meal; it is sufficient, he says, to bensch, throw a cloth on top of the food, recite hamotzi again, uncover the food, eat another kebeitzah-size piece of bread and bensch a second time.

Gemara’s conclusion

Ultimately, the Gemara demonstrates that the Mishnah does not hold like Rabbi Chidka because of a different reason. A principle of the Mishnah and the Gemara is that when a dispute is recorded, this is the only matter in which the two disputants disagree. Based on this, we can prove that Rabbi Yosi – who permits saving three meals any time of the day — holds like the tanna kamma in the dispute of the beraysa between the tanna kamma and Rabbi Chidka. If Rabbi Yosi held like Rabbi Chidka, he would permit removing four meals from the burning house, since there are times that one might need to evacuate the house before eating any Shabbos meals. Yet, Rabbi Yosi permits removal of only three meals – meaning that the maximum number of meals that you are ever required to eat on Shabbos is three!

So the dispute between the stam Mishnah and Rabbi Yosi is not how many meals you are required to eat on Shabbos, but whether Chazal permitted the same number of meal retrievals regardless of the time of day. Therefore, we can demonstrate that the stam Mishnah also held according to the tanna kamma and not Rabbi Chidka (Shabbos 118a with Rashi).

On an ordinary Shabbos, fulfilling the mitzvah of eating three meals should not present any major difficulty or require extensive planning. One should simply follow the conclusion of the Shulchan Aruch, who requires that all three Shabbos meals be bread-based, one on Friday night, a second in the morning, and the third on Shabbos afternoon.

This sequence is halachically preferable. However, we have endeavored to determine what the halacha is in unusual situations. As we have seen, according to most authorities, eating the three Shabbos meals by combining two or more of them into one part of the day does not fulfill the mitzvah. Nevertheless, since there are authorities who rule that this practice fulfills the mitzvah, someone who cannot follow the optimal way to fulfill the mitzvah should still try to have three meals on Shabbos and fulfill the mitzvah according to the Behag’s opinion, namely, that one must eat three meals over the course of Shabbos, but the time when one eats them is not a halachic concern.

Next week’s exciting article will outline how we observe, in practice, these laws on Erev Pesach.

Conclusion

The entire takkanah of saving food from a fire is highly unusual. While observing Shabbos, we need to focus constantly on what we do and how we do it. The laws of moving muktzah fulfill a similar goal. Implementing the laws of muktzah requires the details of Shabbos observance to be on our minds constantly.

Creating a beautiful Shabbos entails much planning and organization. Studying all the halachos of Shabbos helps us appreciate Shabbos more, and enables us to achieve maximum joy and growth on this special day.

Rav Yitzchak Halevi Herzog and His Influence on the Medinah

Rav Herzog wrote and lobbied extensively to make choshen mishpat the system of law in the modern State of Israel and that its court system should be in the hands of recognized dayanim. For the week of parshas Mishpatim, here is an article about his unique contributions to Klal Yisrael.

Contrary to what many people think, the first Chief Rabbi of the modern State of Israel was not Rav Kook, but Rav Yitzchak Isaac Halevi Herzog. Rav Kook was the first Ashkenazi Chief Rabbi of the new yishuv, but he passed away in 1935, thirteen years before the Declaration of Independence of the State of Israel. After Rav Kook’s passing, the search committee for a new rav placed two candidates before the body in charge of selecting a new rav, and Rav Herzog, then serving as the Chief Rabbi of the Irish Free State, was chosen over Rav Yaakov Moshe Charlap, the Rosh Yeshivah of Yeshivas Merkaz Harav, now located in the Kiryat Moshe neighborhood of Yerushalayim.

Rav Herzog was born December 1, 1888, in Lomzha, where his family had lived for several generations. His father, Rav Yoel Herzog, was a well-known talmid chacham in the city and served as one of the dayanim alongside the city’s rav, Rav Noach Yitzchak Diskin (a brother of Rav Yehoshua Leib Diskin, one of the main unofficial rabbanim of the old yishuv of Yerushalayim and the rebbe of Rav Yosef Chayim Sonnenfeld, the first rav of the Eidah Hachareidis), and Rav Malkiel Tzvi Halevi, the author of the Divrei Malkiel, one of the greatest poskim in Lithuania in his generation. In contrast to most rabbonim of the time, Rav Yoel Herzog was a “fiery Zionist” – he was a strong supporter of the Chovevei Zion, a forerunner to the Zionist movement. As a young man, he met Rav Shmuel Mohaliver, one of the early founders of religious Zionism, who invited the much younger Rav Yoel Herzog to the first Zionist Congress, where Rav Mohaliver planned to introduce him to Theodore Herzl. At the last minute, Rav Yoel Herzog was unable to attend because his son Yitzchak became seriously ill. Most fortunate for the history of klal Yisrael, the young Yitzchak recovered.

The younger Rav Herzog grew up in an environment that believed very strongly in the building of a modern Jewish presence in Eretz Yisrael and had no difficulty cooperating with non-religious elements to bring about the creation of a Jewish state in the Holy Land.

The senior Rav Herzog left Poland, first to become Chief Rabbi of Leeds, England, and then to be the Chief Ashkenazi Rav of Paris. There were no significant yeshivos in England or France in this era, yet the young Rav Yitzchak Herzog became a tremendous gaon in learning, first by learning bechavrusa with his father, and then on his own. He pursued his secular education at the University of London and the Sorbonne, eventually earning a master’s degree equivalent from the Sorbonne and a Ph. D. from the University of London. During this time, he continued growing in Torah learning by studying on his own and corresponding with the greatest of the Torah world at the time, including the Ridbaz, Rav Isser Zalman Meltzer, and Rav Meir Simcha of Dvinsk (the Or Somayach). He later named his two sons for Rav Chayim Soloveichek of Brisk and the Ridbaz, gedolim whose acquaintance he had developed via correspondence from London, Paris and, later, Ireland, where he served first as the Chief Rabbi of Belfast (1916) and afterward of Dublin (1919). He became the Chief Rabbi of the Irish Free State when it achieved its independence (1922).

Rav Herzog was offered positions at many larger, more prestigious and wealthier communities, all of which he turned down, stating that his intention was to move to Israel and nowhere else. When his father passed away in 1933, he was beseeched to take his father’s place as rav of Paris, but he replied that he would not relocate anywhere other than to the Holy Land. He was also offered to become chacham bashi, or Chief Rabbi, of Salonika, at the time the most prestigious rabbinic post in the Sephardic world, with the understanding that whenever any post of chacham bashi anywhere in Israel would become available, he would be virtually guaranteed the position. He turned down this offer also, saying that he did not want to assume any position outside of Israel, even on an interim basis. He was the only person in history who might have become either the Ashkenazi or the Sefardi Chief Rabbi of Israel!

When the position of rav of Tel Aviv-Yaffo became vacant in 1933, he became a candidate for the position, alongside Rav Joseph Ber Soloveichek, Chief Rabbi of Boston. However, the organized Mizrachi community in Eretz Yisrael backed Rav Moshe Avigdor Amiel, who was selected for the position.

As mentioned above, two years later, in 1935, Rav Herzog was elected Ashkenazi Chief Rabbi of Palestine, and when the state was founded in 1948, he became the first Ashkenazi Chief Rabbi of Israel.

Rav Herzog’s tenure was during a time of tremendous turmoil for the Jewish people in general and particularly for the yishuv in Israel. This is the period of the growth of the Nazi regime, the Arab riots and the British issuing repeated white papers restricting Jewish immigration to Israel when it was needed most. Rav Herzog, an eloquent and native English speaker, a tireless worker and an ego-less communal activist, used all of his considerable talents to help Klal Yisrael in every imaginable way during this difficult period. We can single out his traveling in the middle of the war from Israel to the United States to personally lobby President Roosevelt to help the plight of Jews being massacred by the Nazis, and his considerable efforts after the war to locate Jewish children who had been placed in Christian orphanages during the war and reunite them with their people.

Well before the founding of the State, Rav Herzog was probably the first one to write on how the new state should be run, envisioning an integration and application of halacha to the legal system of a modern new country. He published, lectured and lobbied that the new state and its entire legal system should be run according to halacha. He felt that its criminal justice system should use dayanim as its judges, and that Choshen Mishpat should be its legal foundation – not Anglo-Saxon common law, as unfortunately happened. He opposed the State having capital punishment, contending that the requirements mandated according to halacha would not be kept.

He even advocated certain “adjustments” to the way batei din and halacha traditionally operated and was usually interpreted, so that it could be used in a modern setting. For example, he wanted to adjust the system of yerusha so that daughters would inherit equally with their brothers, and he introduced the idea of fathers paying child support for their children until society considers them adults. Although he was, by and large, unsuccessful in introducing most of his ideas to Israeli jurisprudence, these last two are currently practiced in the official batei din of the State of Israel. And, although Israel officially has capital punishment, it has been carried out only once in the history of the state (Adolph Eichmann).

In closing, it is fair to say that, unlike Rav Kook, Rav Charlap and others, who built their belief in the medinah upon philosophic and kabbalistic foundations, Rav Herzog emphasized practical matters, such as what structure the legal system would have and how would the courts work, although this aspect of his life’s goals was only moderately successful.

Carrying in Public and the Use of an Eruv

In this week’s parsha, the Torah recounts the story of the manna, also including the unbecoming episode where some people attempted to gather it on Shabbos. In the words of the Torah:

And Moshe said, “Eat it (the manna that remained from Friday) today, for today is Shabbos to Hashem. Today you will not find it (the manna) in the field. Six days you shall gather it, and the Seventh Day is Shabbos – there will be none.”

And it was on the Seventh Day. Some of the people went out to gather, and they did not find.

And Hashem said to Moshe: “For how long will you refuse to observe My commandments and My teachings. See, Hashem gave you the Shabbos. For this reason He provides you with two-day’s supply of bread on the sixth day. On the Seventh Day each person should remain where he is and not leave his place” (Shemos 16:25-29).

Although the Torah’s words each person should remain where he is and not leave his place imply that even leaving one’s home is forbidden, the context implies that one may not leave one’s home while carrying the tools needed to gather manna (Tosafos, Eruvin 17b). The main prohibition taught here is to refrain from carrying from one’s house or any other enclosed area (halachically called reshus hayachid) to an area available for the entire Benei Yisroel in the Desert to traverse, a reshus harabim. Chazal further explain that moving an item in any way from a reshus hayachid to a reshus harabim is a Torah violation, whether one throws it, places it, hands it to someone else, or transports it in any other way (Shabbos 2a, 96). Furthermore, we derive from other sources that one may also not transport an item from a reshus harabim to a reshus hayachid, nor may one transport it four amos (about seven feet) or more within a reshus harabim (Gemara Shabbos 96b; Tosafos, Shabbos 2a s.v. pashat). Thus, carrying into, out of, or within a reshus harabim incurs a severe Torah prohibition. For convenience’s sake, I will refer to portage of an item from one reshus to another or within a reshus harabim as carrying, regardless of the method of conveyance.

One should note that with reference to the melacha of carrying on Shabbos, the terms reshus hayachid and reshus harabim do not relate to the ownership of the respective areas, but are determined by the extent that the areas are enclosed and how they are used. A reshus hayachid could certainly be public property and there are ways whereby an individual could own a reshus harabim.

Notwithstanding the Torah’s clear prohibition against carrying into, from, or within a reshus harabim, we are all familiar with the concept of an eruv that permits carrying in areas that are otherwise prohibited. You might ask, how can poles and wires permit that which is otherwise prohibited min haTorah? As we will soon see, it indeed cannot, and the basis for permitting use of an eruv is far more complicated.

We are also aware of controversies in which one respected authority certifies a particular eruv, while others contend that it is invalid. This is by no means a recent phenomenon. We find extensive disputes among early authorities whether one may construct an eruv in certain areas; some considering it a mitzvah to construct the eruv, whereas others contend that the very same “eruv” is causing people to sin.

AN OLD MACHLOKES

Here is an instance. In the thirteenth century, Rav Yaakov ben Rav Moshe of Alinsiya wrote a letter to the Rosh explaining why he forbade constructing an eruv in his town. In his response, the Rosh contended that Rav Yaakov’s concerns were groundless and that he should immediately construct an eruv. Subsequent correspondence reveals that Rav Yaakov did not change his mind and still refused to erect an eruv in his town. The Rosh severely rebuked Rav Yaakov for this recalcitrance, insisting that if Rav Yaakov persisted, he, the Rosh, would place Rav Yaakov in cherem! The Rosh further contended that Rav Yaakov had the status of a zakein mamrei, a Torah scholar who rules against a decision of the Sanhedrin, which, in the time of the Beis HaMikdash, constitutes a capital offense (Shu”t HaRosh 21:8). This episode demonstrates that heated disputes over eruvin are by no means recent phenomena.

The goal of this article is to explain what allows the construction of an eruv, and present some circumstances in which one authority permits carrying within a specific eruv while another forbids it.

IS IT A MITZVAH?

Before I present the arguments for and against eruv construction in the modern world, we should note that all accept that it is a mitzvah to erect a kosher eruv when this is halachically and practically possible, as the following anecdote indicates.

Rabbah the son of Rav Chanan asked Abayei: “How can it be that an area in which reside two such great scholars (Abayei and Abayei’s Rebbe) is without an eruv?” Abayei answered: “What should we do? It is not respectful for my master to be involved, I am too busy with my studies, and the rest of the people are not concerned” (Eruvin 68a).

The commentaries note that Abayei accepted the position presented by Rabbah that one should assemble an eruv. Abayei merely deflected the inquiry by pointing out that no one was readily available to attend to the eruv, and that its construction did not preempt other factors, specifically Abayei’s commitment to Torah study and the inappropriateness for Abayei’s Rebbe to be involved in the project. Indeed, halachic authorities derive from this Talmudic passage that it is a mitzvah to erect an eruv whenever halachically permitted (Tashbeitz 2:37, quoted verbatim by the Birkei Yosef, Orach Chayim 363:2). These rulings are echoed by such luminaries as the Chasam Sofer (Shu”t Orach Chayim #99), the Avnei Nezer (Orach Chayim #266:4), the Levush Mordechai (Orach Chayim #4) and Rav Moshe Feinstein (Shu”t Igros Moshe, Orach Chayim 1:139:5 s.v. vilichora).

I mentioned before that the construction of an eruv with poles and wires cannot permit carrying that is prohibited min haTorah. If this is true, upon what basis do we permit the construction of an eruv? To answer this question, we need to understand that not every open area is a reshus harabim – quite the contrary, a reshus harabim must meet very specific and complex requirements, including:

(A) It must be unroofed (Shabbos 5a).

(B) It must be meant for public use or thoroughfare (Shabbos 6a).

(D) According to most authorities, it cannot be inside an enclosed area (cf., however, Be’er Heiteiv 345:7, quoting Rashba, and Baal HaMaor, Eruvin 22a,quoting Rabbeinu Efrayim). Exactly what is the definition of an “enclosed area” is the subject of a major dispute that I will discuss.

(E) According to many authorities, it must be used by at least 600,000 people daily (Rashi, Eruvin 59a, but see Rashi ad loc. 6a where he only requires that the city has this many residents.). This is derived from the Torah’s description of carrying into the encampment in the Desert, which we know was populated by 600,000 people.

(F) Many authorities require that it be a through street, or a gathering area that connects to a through street (Rashi, Eruvin 6a).

(G) Some authorities add still other requirements.

Any area that does not meet the Torah’s definition of a reshus harabim, and yet is not enclosed, is called a karmelis. One may not carry into, from, or within a karmelis following the same basic rules that prohibit carrying into a reshus harabim. However, since the prohibition not to carry in a karmelis is only rabbinic in origin, Chazal allowed a more lenient method of “enclosing” it.

CAN ONE “ENCLOSE” A RESHUS HARABIM?

As I mentioned earlier, carrying within a true reshus harabim is prohibited min haTorah – for this reason, the use of a standard eruv does not permit carrying in such an area (Eruvin 6b). Nevertheless, the construction of large doors that restrict public traffic transforms the reshus harabim into an area that one can now enclose with an eruv. According to some authorities, the existence of these doors and occasionally closing them is sufficient for the area to lose its reshus harabim status. (Rashi, Eruvin 6b; However, cf. Rabbeinu Efrayim, quoted by Baal HaMaor, Eruvin 22a).

PLEASE CLOSE THE DOOR!

There are some frum neighborhoods in Eretz Yisroel where a thoroughfare to a neighborhood or town is closed on Shabbos with a door, in order to allow an eruv to be constructed around the area. However, this approach is not practical in most places where people desire to construct an eruv.

So what does one do if one cannot close the area with doors?

This depends on the following issue: Does the area that one wants to enclose meet the requirements of a reshus harabim min haTorah or is it only a karmelis? If the area is a reshus harabim min haTorah and one cannot occasionally close the area with doors, then there is no way to permit carrying in this area. One should abandon the idea of constructing an eruv around the entire city or neighborhood (see Gemara Eruvin 6a; Shulchan Aruch Orach Chayim 364:2). Depending on the circumstances, one may still be able to enclose smaller areas within the city.

TZURAS HAPESACH

However, if the area one wants to enclose does not qualify as a reshus harabim, then most authorities rule that one may enclose the area by using a tzuras hapesach (plural, tzuros hapesach), literally, the form of a doorway. (However, note that Shu”t Mishkenos Yaakov #120 s.v. amnom and Shu”t Mishnas Rav Aharon #6 s.v. Kuntrus Be’Inyanei Eruvin paragraph #2 forbid this.) A tzuras hapesach consists of two vertical side posts and a horizontal “lintel” that passes directly over them, thus resembling a doorway. According to halacha, a tzuras hapesach successfully encloses a karmelis area, but it cannot permit carrying in a true reshus harabim (Eruvin 6a). Using tzuros hapesach is the least expensive and most discreet way to construct an eruv. In a future article, I hope to explain some common problems that can happen while constructing tzuros hapesach and how to avoid them, and some important disputes relative to their construction.

Let us review. One can permit carrying in a karmelis, but not a reshus harabim, by enclosing the area with tzuros hapesach. Therefore, a decisive factor in planning whether one can construct an eruv is whether the area is halachically a karmelis or a reshus harabim. If the area qualifies as a karmelis, then an eruv consisting of tzuros hapesach permits one to carry; if it is a reshus harabim, then tzuros hapesach do not permit carrying. The issues concerning the definition of a reshus harabim form the basis of most controversies as to whether a specific eruv is kosher or not.

600,000 PEOPLE

An early dispute among Rishonim was whether one of the requirements of a reshus harabim is that it be accessible to 600,000 people, the number of male Jews over twenty that the Torah tells us exited Egypt (see Tosafos, Eruvin 6a s.v. Keitzad). According to Rashi and the others who follow this approach, one may enclose any metropolis with a population smaller than 600,000 with tzuros hapesach to permit carrying. (Rashi in some places describes that the city has 600,000 residents, and in others describes that 600,000 people use the area constantly. The exact definition to be used is the subject of much literature, see Shu”t Mishkenos Yaakov #120 s.v. hinei harishon; and Igros Moshe, Orach Chayim 1:139:5.)

However, other early authorities contend that an area with less than 600,000 people still qualifies as a reshus harabim, providing that it fulfills the other requirements that I listed above. In their opinion, such an area cannot be enclosed with tzuros hapesach. Although many authorities hold this way, the accepted practice in Ashkenazic communities was to follow the lenient interpretation and construct eruvin around an area with less than 600,000 people.

Nevertheless, the Mishnah Berurah discourages carrying in such an eruv since many Rishonim do not accept it (364:8; Bi’ur Halacha to 345:7 and to 364:2). There are different opinions whether Sephardim are at liberty to follow this lenience, although the prevalent practice today is for them to be lenient.

MODERN CITY

Most large metropolitan areas today are populated by more than 600,000 people. Some authorities still define many of our metropolitan areas as a karmelis based on the following definition: Any area less concentrated than was the Jews’ encampment in the Desert is considered a karmelis. Since this encampment approximated 50 square miles, these authorities permit an eruv anywhere that the population density is less than 600,000 people per 50 square miles (Shu”t Igros Moshe 4:87). However, other authorities consider any metropolitan area or megalopolis containing 600,000 people to be a reshus harabim, regardless of its population density. Does this mean that there is no heter with which to construct an eruv in a large city? Indeed, many authorities contend this way (Shu”t Mishnas Rav Aharon 1:2).

A LARGE BREACH

The Chazon Ish, however,presented a different approach to permit construction of an eruv in a contemporary large city. His approach requires an introduction.

In general, an area enclosed by three or four full walls cannot be a reshus harabim (Eruvin 22a). What is the halacha if each of the three sides of an area is enclosed for most of its length – however, there are large gaps in the middle of the enclosure. For example, walls or buildings enclose most of an area, but there are gaps in the middle of the area between the buildings where streets cross the city blocks. Does the area in the middle, surrounded on both sides by buildings and other structures, still qualify as a reshus harabim, or has it lost this status because it is mostly “enclosed”?

The basis for the question is the following: There is a general halachic principle that an area that is mostly enclosed is considered enclosed even in its breached areas (Eruvin 5b et al.). For example, a yard enclosed by hedges tall enough to qualify as halachic walls may be considered enclosed notwithstanding that there are open areas between the hedges, since each side is predominantly enclosed either by the hedges or by the house.

On the other hand, a breach wider than ten amos (about 17 feet) invalidates the area from being considered enclosed. Therefore, one may not carry within a fenced-in area that has a 20-foot opening without enclosing the opening in some way.

The issue that affects the modern city is the following: Granted that a large breach needs to be enclosed to permit carrying within the area, but is this required min haTorah or only rabbinically? Let us assume that one encloses a reshus harabim area with walls that run for miles, but the walls have large gaps in the middle. Is this area considered enclosed min haTorah because it is mostly surrounded by walls, or is it considered open because of the gaps?

This question was debated by two great nineteenth-century authorities, Rav Efrayim Zalman Margoliyos, the Beis Efrayim and the Rav of Brody, and Rav Yaakov of Karlin, the Mishkenos Yaakov. The Beis Efrayim contended that a breach is only a rabbinic concern, and that the area is considered enclosed min haTorah, whereas the Mishkenos Yaakov held that a breach qualifies the area as a reshus harabim min haTorah. The lengthy correspondence between the two of them covers also a host of other eruv related issues (Shu”t Beis Efrayim, Orach Chayim # 25, 26; Shu”t Mishkenos Yaakov, Orach Chayim, #120-122).

What difference does it make whether this area is considered open min haTorah or miderabbanan, since either way one cannot carry without enclosing the area?

The difference is highly significant. If we follow the lenient approach of the Beis Efrayim, then even if the area in the middle meets all the other requirements of a reshus harabim, the area loses its status as a reshus harabim because of the walls surrounding it, notwithstanding the large gaps in the walls. In this case, it may be possible to construct an eruv in such a place.

On the other hand, the Mishkenos Yaakov would contend that this area is considered a reshus harabim because of the gaps, and we ignore the walls. According to him it will be impossible to construct an eruv.

How one rules in the dispute between these two gedolim affects the issue of constructing an eruv in a contemporary city. Most modern cities contain city blocks that consist predominantly of large buildings with small areas between the buildings, and streets that are much narrower than the blocks. If we view these buildings as enclosures, then one can easily envision that both sides of the street are considered enclosed min haTorah according to the Beis Efrayim’s analysis. This itself does not sufficiently enclose our area because of the streets that run parallel to the buildings. However, at certain points of the city, the parallel streets dead end into a street that is predominantly enclosed with either buildings, fences, walls, or some other way. The result is that this section of the city can now be considered min haTorah as enclosed on three sides by virtue of the buildings paralleling both sides of the street and those on its dead end. Since this area now qualifies as an enclosed area min haTorah, the entire area is considered a reshus hayachid min haTorah.

The Chazon Ish now notes the following: Once you have established that this part of the city qualifies as a reshus hayachid min haTorah, this area is now considered completely enclosed halachically. For this reason, other city blocks that are predominantly enclosed on both sides of the street that intersect with this first area are also now considered to be enclosed areas min haTorah. According to his calculation, a large section of most cities is considered min haTorah enclosed on at least three sides, according to his calculation. Although one cannot carry in these areas miderabbanan because of the “breaches” in their “enclosures,” they are no longer reshus harabim min haTorah and one can therefore enclose the entire area with tzuros hapesach (Chazon Ish, Orach Chayim 107:5). The Chazon Ish concludes that many large cities today qualify as a karmelis and therefore one may construct tzuros hapesach to permit carrying there.

However, other authorities reject this calculation for a variety of reasons, some contending that the gaps between the buildings invalidate the enclosure, thus leaving the area to be considered a reshus harabim, which cannot be enclosed (Shu”t Mishkenos Yaakov; Shu”t Mishnas Rav Aharon).

In conclusion, we see that disputes among poskim over eruvin are not recent phenomena. In practice, what should an individual do? The solution proposed by Chazal for all such issues is “Aseh lecha rav, vehistaleik min hasafek,” “Choose someone to be your rav, and remove doubt from yourself.” He can guide you whether it is appropriate to carry within a certain eruv, after considering the halachic basis for the specific eruv’s construction, the level of eruv maintenance, and family factors. Never underestimate the psak and advice of your rav!